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Public Administration and Public Policy/84 


Handbook of 
Criminal Justice 
Administration 


edited by 

M. A. DuPont-Morales 
Michael K. Hooper 
Judy H. Schmidt 








Handbook of 
Criminal Justice 
Administration 



PUBLIC ADMINISTRATION AND PUBLIC POLICY 


A Comprehensive Publication Program 

Executive Editor 

JACK RABIN 

Professor of Public Administration and Public Policy 
School of Public Affairs 
The Capital College 

The Pennsylvania State University—Harrisburg 
Middletown, Pennsylvania 


1. Public Administration as a Developing Discipline (in two parts), Robert T. 
Qolembiewski 

2. Comparative National Policies on Health Care, Milton I. Roemer, M.D. 

3. Exclusionary Injustice: The Problem of Illegally Obtained Evidence, Steven 
R. Schlesinger 

4. Personnel Management in Government: Politics and Process, Jay M. 
Shafritz, Walter L, Balk, Albert C. Hyde, and David H. Rosenbloom 

5. Organization Development in Public Administration (in two parts), edited 
by Robert T. Golembiewski and William B. Eddy 

6. Public Administration: A Comparative Perspective, Second Edition, Re¬ 
vised and Expanded, Ferrel Heady 

7. Approaches to Planned Change (in two parts), Robert T, Golembiewski 

8. Program Evaluation at HEW (in three parts), edited by James G. Abert 

9. The States and the Metropolis, Patricia S. Florestano and Vincent L. 
Marando 

10. Personnel Management in Government: Politics and Process,- Second Edi¬ 
tion, Revised and Expanded, Jay M. Shafritz, Albert C. Hyde, and David 
H. Rosenbloom 

11. Changing Bureaucracies: Understanding the Organization Before Selecting 
the Approach, William A. Medina 

12. Handbook on Public Budgeting and Financial Management, edited by 
Jack Rabin and Thomas D. Lynch 

13. Encyclopedia of Policy Studies, edited by Stuart S. Nagel 

14. Public Administration and Law: Bench v. Bureau in the United States, 
David H. Rosenbloom 

15. Handbook on Public Personnel Administration and Labor Relations, edited 
by Jack Rabin, Thomas Vocino, W. Bartley Hildreth, and Gerald J. Miller 

16. Public Budgeting and Finance: Behavioral, Theoretical, and Technical Per¬ 
spectives, Third Edition, edited by Robert T. Golembiewski and Jack 
Rabin 



17. Organizational Behavior and Public Management, Debra W. Stewart and 
G. David Garson 

18. The Politics of Terrorism: Second Edition, Revised and Expanded, edited 
by Michael Stohl 

1 9. Handbook of Organization Management, edited by William B. Eddy 

20. Organization Theory and Management, edited by Thomas D. Lynch 

21. Labor Relations in the Public Sector, Richard C. Kearney 

22. Politics and Administration: Woodrow Wilson and American Public Ad¬ 
ministration, edited by Jack Rabin and James S. Bowman 

23. Making and Managing Policy: Formulation, Analysis, Evaluation, edited by 
G. Ronald Gilbert 

24. Public Administration: A Comparative Perspective, Third Edition, Revised, 
Ferrel Heady 

25. Decision Making in the Public Sector, edited by Lloyd G. Nigro 

26. Managing Administration, edited by Jack Rabin, Samuel Humes, and 
Brian S. Morgan 

27. Public Personnel Update, edited by Michael Cohen and Robert T. Golem- 
biewski 

28. State and Local Government Administration, edited by Jack Rabin and 
Don Dodd 

29. Public Administration: A Bibliographic Guide to the Literature, Howard E. 
McCurdy 

30. Personnel Management in Government: Politics and Process, Third 
Edition, Revised and Expanded, Jay M. Shafritz, Albert C. Hyde, and 
David H. Rosenbloom 

31. Handbook of Information Resource Management, edited by Jack Rabin 
and Edward M. Jackowski 

32. Public Administration in Developed Democracies: A Comparative Study, 
edited by Donald C. Rowat 

33. The Politics of Terrorism: Third Edition, Revised and Expanded, edited by 
Michael Stohl 

34. Handbook on Human Services Administration, edited by Jack Rabin and 
Marcia B. Steinhauer 

35. Handbook of Public Administration, edited by Jack Rabin, W. Bartley 
Hildreth, and Gerald J. Miller 

36. Ethics for Bureaucrats: An Essay on Law and Values, Second Edition, 
Revised and Expanded, John A. Rohr 

37. The Guide to the Foundations of Public Administration, Daniel W. Martin 

38. Handbook of Strategic Management, edited by Jack Rabin, Gerald J. 
Miller, and W. Bartley Hildreth 

39. Terrorism and Emergency Management: Policy and Administration, 
William L. Waugh, Jr. 

40. Organizational Behavior and Public Management: Second Edition, Revised 
and Expanded, Michael L. Vasu, Debra W. Stewart, and G. David Garson 

41. Handbook of Comparative and Development Public Administration, edited 
by Ali Farazmand 

42. Public Administration: A Comparative Perspective, Fourth Edition, Ferrel 
Heady 

43. Government Financial Management Theory, Gerald J. Miller 



44. Personnel Management in Government: Politics and Process, Fourth 
Edition, Revised and Expanded, Jay M. Shafritz, Norma M. Riccucci, 
David H. Rosenbloom, and Albert C. Hyde 

45. Public Productivity Handbook, edited by Marc Holzer 

46. Handbook of Public Budgeting, edited by Jack Rabin 

47. Labor Relations in the Public Sector: Second Edition, Revised and Ex 
panded, Richard C. Kearney 

48. Handbook of Organizational Consultation, edited by Robert T. Golem 
biewski 

49. Handbook of Court Administration and Management, edited by Steven 
W. Hays and Cole Blease Graham, Jr. 

50. Handbook of Comparative Public Budgeting and Financial Management, 
edited by Thomas D. Lynch and Lawrence L. Martin 

51. Handbook of Organizational Behavior, edited by Robert T. Golembiewski 

52. Handbook of Administrative Ethics, edited by Terry L. Cooper 

53. Encyclopedia of Policy Studies: Second Edition, Revised and Expanded, 
edited by Stuart S. Nagel 

54. Handbook of Regulation and Administrative Law, edited by David H. 
Rosenbloom and Richard D. Schwartz 

55. Handbook of Bureaucracy, edited by Ali Farazmand 

56. Handbook of Public Sector Labor Relations, edited by Jack Rabin, 
Thomas Vocino, W. Bartley Hildreth, and Gerald J. Miller 

57. Practical Public Management, Robert T. Golembiewski 

58. Handbook of Public Personnel Administration, edited by Jack Rabin, 
Thomas Vocino, W. Bartley Hildreth, and Gerald J. Miller 

59. Public Administration: A Comparative Perspective, Fifth Edition, Ferrel 
Heady 

60. Handbook of Debt Management, edited by Gerald J. Miller 

61. Public Administration and Law: Second Edition, David H. Rosenbloom 
and Rosemary O'Leary 

62. Handbook of Local Government Administration, edited by John J. Gargan 

63. Handbook of Administrative Communication, edited by James L. Garnett 
and Alexander Kouzmin 

64. Public Budgeting and Finance: Fourth Edition, Revised and Expanded, 
edited by Robert T. Golembiewski and Jack Rabin 

65. Handbook of Public Administration: Second Edition, edited by Jack 
Rabin, W. Bartley Hildreth, and Gerald J. Miller 

66. Handbook of Organization Theory and Management: The Philosophical 
Approach, edited by Thomas D. Lynch and Todd J. Dicker 

67. Handbook of Public Finance, edited by Fred Thompson and Mark T. 
Green 

68. Organizational Behavior and Public Management: Third Edition, Revised 
and Expanded, Michael L. Vasu, Debra W. Stewart, and G. David Garson 

69. Handbook of Economic Development, edited by Kuotsai Tom Liou 

70. Handbook of Health Administration and Policy, edited by Anne Osborne 
Kilpatrick and James A. Johnson 

71. Handbook of Research Methods in Public Administration, edited by 
Gerald J. Miller and Marcia L. Whicker 

72. Handbook on Taxation, edited by W. Bartley Hildreth and James A. 
Richardson 



73. Handbook of Comparative Public Administration in the Asia-Pacific Basin, 
edited by Hoi-kwok Wong and Hon S. Chan 

74. Handbook of Global Environmental Policy and Administration, edited by 
Dennis L. Soden and Brent S. Steel 

75. Handbook of State Government Administration, edited by John J. Gargan 

76. Handbook of Global Legal Policy, edited by Stuart S. Nagel 

77. Handbook of Public Information Systems, edited by G. David Garson 

78. Handbook of Global Economic Policy, edited by Stuart S. Nagel 

79. Handbook of Strategic Management: Second Edition, Revised and 
Expanded, edited by Jack Rabin, Gerald J. Miller, and W. Bartley Hildreth 

80. Handbook of Global International Policy, edited by Stuart S. Nagel 

81. Handbook of Organizational Consultation: Second Edition, Revised and 
Expanded, edited by Robert T. Golembiewski 

82. Handbook of Global Political Policy, edited by Stuart S. Nagel 

83. Handbook of Global Technology Policy, edited by Stuart S. Nagel 


Additional Volumes in Preparation 

Handbook of Global Social Policy, edited by Stuart S. Nagel and Amy Robb 

Handbook of Organizational Behavior: Second Edition, Revised and Ex¬ 
panded, edited by Robert T. Golembiewski 

Handbook of Administrative Ethics: Second Edition, Revised and Expanded, 
edited by Terry L. Cooper 

Handbook of Public Quality Management, edited by Ronald J Stupak and 
Peter M. Leitner 

Handbook of Criminal Justice Administration, edited by Tom DuPont- 
Morales, Michael K. Hooper, and Judy H. Schmidt 

Labor Relations in the Public Sector: Third Edition, edited by Richard C 
Kearney 

Handbook of Crisis and Emergency Management, edited by Ali Farazmand 

Handbook of Public Management Practice and Reform, edited by Kuotsai 
Tom Liou 

Handbook of Comparative and Development Public Administration: Second 
Edition, Revised and Expanded, edited by Ali Farazmand 

Principles and Practices of Public Administration [on-line text], edited by Jack 
Rabin, Robert Munzenrider, and Sherrie Bartell 



Public Administration: A Comparative Perspective, Sixth Edition, Revised 
and Expanded, Ferret Heady 


ANNALS OF PUBLIC ADMINISTRATION 

1. Public Administration: History and Theory in Contemporary Perspective, 
edited by Joseph A. Uveges, Jr. 

2. Public Administration Education in Transition, edited by Thomas Vocino 
and Richard Heimovics 

3. Centenary Issues of the Pendleton Act of 1883, edited by David H. Ro- 
senbloom with the assistance of Mark A. Emmert 

4. Intergovernmental Relations in the 1980s, edited by Richard H. Leach 

5. Criminal Justice Administration: Linking Practice and Research, edited by 
William A. Jones, Jr. 



Handbook of 
Criminal Justice 
Administration 


edited by 

M. A. DuPont-Morales 
Michael K. Hooper 
Judy H. Schmidt 

Penn State University-Harrisburg 
Middletown, Pennsylvania 


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Preface 


The enforcement of laws and the numerous tasks involved in establishing and 
maintaining civility in our communities are daily challenges to the criminal jus¬ 
tice system. The administration of justice has become a series of competing man¬ 
dates that demand bravery, accountability, and service. The administration and 
management of the criminal justice system have grown more complex for law 
enforcement, courts, corrections, and victim services. 

The purpose of this volume is to review the historical foundation for the 
current agenda and develop a strategy for the future of criminal justice administra¬ 
tion. Criminal justice now answers to local and global decrees regarding safety 
and professional service. Along with these societal demands, the administration 
of justice is mandated to be efficient, effective, and ethical. Research and aca¬ 
demia have embraced a collaborative spirit because technology and scientific 
advancements have developed explanations for patterns of criminal behavior. 
Ironically, as the system advances so does the criminal element, and formulation 
of strategies to address this reality is a constant challenge. 

Criminal justice administration requires versatility to address the situational 
dimensions between criminals and those they victimize. This volume is edited to 
address the numerous perspectives that make up criminal justice administration: 
prevention, intervention, due process, marginalized populations, international 
consequences, and the demand for professionalism. 

Part I contains foundational pieces and is appropriately titled Global and 
Comparative Perspectives. The quintessential topic of ethics is examined within 
the context of the criminal justice system’s three principal components; police, 
courts, and corrections. Trends in crime are examined, as are historical explanations 



iv 


Preface 


for the commission of crime. Part I concludes with an examination of the important 
variations among the criminal justice systems of the nations of the world. 

Part II, Policing, examines principal policing elements. Community polic¬ 
ing is analyzed in the context of its predecessor policing strategies. Two bulwarks 
of policing—investigation and traffic operations—are given their due coverage. 
Two ‘ ‘hot-button’ ’ topics, use of force and civil disorder, are dissected as a means 
of understanding their dynamics. 

Part III, Courts, looks at the operation of the criminal courts. The review 
begins with a discussion of the general principles of criminal law and summarizes 
the elements of the more common criminal offenses. A separate chapter is dedi¬ 
cated to the complexities of criminal procedure. Examination of the criminal trial 
process is accomplished by emphasis on the explanation of legal and communica¬ 
tion processes. Courts are also examined from a general perspective, not one 
limited to criminal justice, because the judicial branch must simultaneously deal 
with criminal and other subject matter. 

Part IV, Corrections, examines the correctional process comprehensively. 
Institutional corrections and alternatives to incarceration are thoroughly re¬ 
viewed. Prisoner rights and capital punishment are controversial issues that re¬ 
ceive focused analysis. 

Part V, Special Topics, addresses prominent topics that emerged at the end 
of the 20th century and are expected to remain areas to which substantial re¬ 
sources will be dedicated into the next millennium. Insights into the science of 
victimology open this section. Discussions of workplace violence and domestic 
violence follow. Organized crime and white collar crime are discussed in the 
context of their enormity and defining qualities. Terrorism is examined in the 
light of its unique aspects, which present challenges from the initial investigation 
through sentencing. Environmental crime is introduced through discussion of its 
unique body of law and its administration and enforcement protocols. The discus¬ 
sion of special topics concludes with a foray into an array of aspects of technology 
in criminal justice administration. 


M. A. DuPont-Morales 
Michael K. Hooper 
Judy H. Schmidt 



Contents 


Preface Hi 

Contributors ix 

PART I. GLOBAL AND COMPARATIVE PERSPECTIVES 

1. The Ethics of Criminal Justice Administration 1 

Laura B. Myers 

2. Trends in Crime 17 

Neal Slone 

3. A History of Criminological Thought: Explanations for 

Crime and Delinquency 31 

Barbara Sims 

4. Comparative Criminal Justice 51 

Mathieu Deflem and Amanda J. Swygart 

PART II. POLICING 

5. Community Policing: Past, Present, and Future 69 

W. T. Jordan and Mary Ann Zager 

6. Managing Criminal Investigation 95 

Brian Forst 

v 



vi 


Contents 


7. 

Traffic Operations 

Michael E. Donahue and Don A. Josi 

123 

8. 

Use of Force by Law Enforcement Officers 

Greg Meyer 

147 

9. 

Civil Disorder and Policing 

Michael K. Hooper 

159 

PART III COURTS 


10. 

Criminal Law 

Craig Hemmens 

167 

11. 

Criminal Procedure 

Craig Hemmens 

185 

12. 

Criminal Trial Process 

Janice Schuetz 

205 

13. 

Evolution of Court Management 

Kevin Lee Derr 

223 

PART IV. CORRECTIONS 


14. 

Evolution of the Correctional Process 

Peter M. Wickman and Komi Swaroop Kumar 

249 

15. 

Probation 

Tammy A. King 

269 

16. 

Alternatives to Incarceration 

Rachel Porter 

285 

17. 

Prisoner Rights 

303 


Katherine J. Bennett and Craig Hemmens 

18. Correctional Administration and Section 1983 Liability 

Issues 319 

Darrell L. Ross 



Contents 


vii 


19. Jail Administration and Management 343 

Kenneth E. Kerle 

20. Publicized Executions and the Incidence of Homicide: 

Methodological Sources of Inconsistent Findings 355 

Steven Stack 

PART V. SPECIAL TOPICS 


21. Victimology 371 

M. A. DuPont-Morales 

22. Workplace Violence: Prevention and Threat Assessment 385 

Michael K. Hooper 

23. Future Trends in Addressing and Preventing Domestic 

Violence: The Role of Domestic Violence Coalitions 395 

Bernadette T. Muscat 

24. Organized Crime 413 

Jeffrey P. Rush and Gregory P. Orvis 

25. White Collar Crime 431 

Richard A. Ball 

26. Terrorism and the American System of Criminal Justice 447 

Brent L. Smith, Kelly R. Damphousse, and Amy Karlson 

27. Environmental Crime and Justice 461 

Nanci Koser Wilson 

28. Technology in Criminal Justice Administration 473 

Valeria Coleman 

Index 499 



This Page I nbentionally Left Blank 



Contributors 


Richard A. Ball, Ph.D. Department of Administration of Justice, Penn State 
University-Fayette, Uniontown, Pennsylvania 

Katherine J. Bennett, Ph.D. Department of Criminal Justice, Social, and Polit¬ 
ical Science, Armstrong Atlantic State University, Savannah, Georgia 

Valeria Coleman, J.D. Department of Law and Legal Studies, Morris Brown 
College, Atlanta, Georgia 

Kelly R. Damphousse, Ph.D. Department of Sociology, University of Okla¬ 
homa, Norman, Oklahoma 

Mathieu Deflem, Ph.D. Department of Sociology and Anthropology, Purdue 
University, West Lafayette, Indiana 

Kevin Lee Derr, J.D. Policy Department and Research Office, Senate of Penn¬ 
sylvania, Harrisburg, Pennsylvania 

Michael E. Donahue, Ph.D. Department of Criminal Justice, Social, and Polit¬ 
ical Science, Armstrong Atlantic State University, Savannah, Georgia 

M. A. DuPont-Morales, Ph.D. School of Public Affairs, Penn State Univer- 
sity-Harrisburg, Middletown, Pennsylvania 



X 


Contributors 


Brian Forst, Ph.D. School of Public Affairs, American University, Washing¬ 
ton, D.C. 

Craig Hemmens, J.D., Ph.D. Department of Criminal Justice Administration, 
Boise State University, Boise, Idaho 

Michael K. Hooper, Ph.D. School of Public Affairs, Penn State University- 
Harrisburg, Middletown, Pennsylvania 

W. T. Jordan, Ph.D. Division of Criminal Justice, Florida Gulf Coast Univer¬ 
sity, Fort Myers, Florida 

Don A. Josi, Ph.D. Department of Criminal Justice, Social, and Political Sci¬ 
ence, Armstrong Atlantic State University, Savannah, Georgia 

Amy Karlson University of Alabama at Birmingham, Birmingham, Alabama 

Kenneth E. Kerle, Ph.D. American Jail Association, Hagerstown, Maryland 

Tammy A. King, Ph.D. Department of Criminal Justice, Youngstown State 
University, Youngstown, Ohio 

Korni Swaroop Kumar, Ph.D. Department of Sociology, State University of 
New York, College at Potsdam, Potsdam, New York 

Greg Meyer, M.S. Police Tactics Consultant, Downey, California 

Bernadette T. Muscat, M.P.A. Department of Behavioral Sciences, York Col¬ 
lege of Pennsylvania, York, Pennsylvania 

Laura B. Myers, Ph.D. College of Criminal Justice, Sam Houston State Uni¬ 
versity, Huntsville, Texas 

Gregory P. Orvis, J.D., Ph.D. Department of Social Sciences, University of 
Texas at Tyler, Tyler, Texas 

Rachel Porter Vera Institute of Justice, New York, New York 

Darrell L. Ross, Ph.D. Department of Criminal Justice Studies, East Carolina 
University, Greenville, North Carolina 



Contributors 


XI 


Jeffrey P. Rush, D.P.A. University of Tennessee at Chattanooga, Chattanooga, 
Tennessee 

Janice Schuetz Department of Communication, University of New Mexico, 
Albuquerque, New Mexico 

Barbara Sims, Ph.D, School of Public Affairs, Penn State University-Harris- 
burg, Middletown, Pennsylvania 

Neal Slone, Ph.D. Department of Sociology, Social Welfare, and Criminal Jus¬ 
tice, Bloomsburg University of Pennsylvania, Bloomsburg, Pennsylvania 

Brent L. Smith, Ph.D. Department of Justice Sciences, University of Alabama 
at Birmingham, Birmingham, Alabama 

Steven Stack, Ph.D. Department of Criminal Justice, Wayne State University, 
Detroit, Michigan 

Amanda J. Swygart, M.S. Department of Sociology and Anthropology. 
Purdue University, West Lafayette, Indiana 

Peter M. Wickman, M.A.Ed.D. Department of Sociology, State University of 
New York, College at Potsdam, Potsdam, New York 

Nanci Koser Wilson Department of Criminology, Indiana University of Penn¬ 
sylvania, Indiana, Pennsylvania 

Mary Ann Zagar, Ph.D. Division of Criminal Justice, Florida Gulf Coast Uni¬ 
versity, Fort Myers, Florida 



This Page I nbentionally Left Blank 



1 

The Ethics of Criminal Justice 
Administration 

Laura B. Myers 

Sam Houston State University, Huntsville, Texas 


I. INTRODUCTION 

The focus on criminal justice ethics training and education has grown over the 
past two decades, resulting in mandatory ethics training within agencies and re¬ 
quired ethics courses in many academic programs. The unnecessary beatings of 
suspects by police officers, the deaths of inmates at the hands of correctional 
officers, and the misconduct of lawyers and judges have all contributed to an 
increasing dissatisfaction with criminal justice. This concern has not just emerged 
from within the discipline but also from the demands placed on the discipline 
by society. As the unethical behaviors of criminal justice practitioners have come 
to public attention, citizens have demanded change. 

As the 20th century has ended, the concern regarding criminal justice ethics 
has turned to a focus on the hiring and retention of criminal justice practitioners 
who will make better decisions at critical times. This process will not happen 
overnight and has become a major issue for criminal justice administrators as 
they daily confront newly developing ethical dilemmas. 

This chapter will first briefly review the history of criminal justice ethics 
within the discipline of criminal justice. Second, some major theories used to 
guide criminal justice ethics will be presented. Third, the areas of policing, courts, 
and corrections will be analyzed to highlight major ethical dilemmas and potential 
solutions to those issues. Finally, the last part of the chapter will present several 
current ethical issues facing criminal justice and their impact on both the disci¬ 
pline and the community. 


1 



2 


Myers 


II. HISTORY OF CRIMINAL JUSTICE ETHICS 

The concern for criminal justice ethics results from the interdisciplinary nature 
of the criminal justice discipline (Kleinig and Smith, 1997). Because criminal 
justice includes the vocational aspects of criminal justice practice, there is con¬ 
cern for the actions of the practitioner. The early emphasis of criminal justice 
ethics began in policing. As funding increased for police education, the concern 
for police quality grew and with it the need for emphasis on law enforcement 
ethics (Sherman, 1978). 

As ethics training and education developed, a distinction between philo¬ 
sophical and applied ethics emerged (Kleinig and Smith, 1997). The first, philo¬ 
sophical ethics, made use of classical and modem philosophical theories that 
apply to practitioner behavior to support rules for ethical behavior. The writings 
of Plato, Socrates, Aristotle, Bentham, Mill, Kant, and others were used to de¬ 
velop rationales for ethical choices in criminal justice work (Souryal, 1992). 

The second, applied ethics, helped guide professional and appropriate be¬ 
haviors expected in criminal justice. Applied ethics drew on the writings of phi¬ 
losophers but in a more limited manner than philosophical ethics. It also used 
the contributions of administrative theorists, behaviorists, and even psychologists 
to understand the behaviors of practitioners to guide their ethical choices. 


III. THEORIES USED IN CRIMINAL JUSTICE ETHICS 

While many theoretical approaches have been used to guide criminal justice eth¬ 
ics, a review of some of the current texts reveals a common reliance on utilitarian¬ 
ism and deontology (Braswell et al., 1996; Pollock, 1994; Souryal, 1992). Other 
approaches appear less often but prove useful in the understanding of behaviors 
and in the guidance of appropriate behaviors. The approaches include peacemak¬ 
ing, religious ethics, the ethics of virtue, and moral development theory. 

A. Utilitarianism 

Utilitarian theory proposes that moral action is action providing the greatest good 
for the greatest number of people. Therefore, based on the writings of Jeremy 
Bentham (1970) and John Stewart Mill (1979), the ethical decisionmaker will 
engage in a mental process of measuring the pros and cons of the potential action 
and choose that which proves best for the majority (Braswell et al., 1996). 

B. Deontology 

The study of duty serves as the basis for deontological theory, which assumes that 
the only moral action is one done for the sake of duty. Deontology emphasizes the 



The Ethics of Criminal Justice Administration 


3 


difference between the hypothetical and categorical imperatives. The hypothetical 
imperative permits the decision maker to review the options. However, the cate¬ 
gorical imperative is the moral imperative and gives the decisionmaker no option: 
a person who takes an oath to perform particular duties must fulfill those duties 
within specific guidelines. 

Two formulations of the categorical imperative are especially helpful in 
guiding ethical choices for persons who have duties to fulfill (Kant, 1964). The 
first formulation is universalizability, meaning that decisionmakers cannot make 
themselves exceptions unless they are willing that all others be allowed the same 
choice. Law enforcement officers, for example, cannot break the law and enforce 
the law at the same time. 

The second formulation is that humans have intrinsic value and must not 
be used as a means to an end. In this case, criminal justice practitioners, guided 
by their sense of duty, must accomplish their goals while resisting the temptation 
to use others in the achievement of those goals. Defense attorneys, for example, 
must resist the temptation to humiliate a victim unnecessarily in defending the 
accused. 

C. Peacemaking 

Peacemaking is a more recent addition to criminal justice ethics. It is a holistic 
approach to guiding behavior with the intent of triggering an appreciation for the 
role individuals play in human interactions. Three aspects of peacemaking in¬ 
clude connectedness, care, and mindfulness. 

1. Connectedness 

Connectedness reminds individuals that actions have consequences. People 
should choose behaviors resulting in minimizing harm to others and the environ¬ 
ment. If individuals fail to recognize the potential of their actions to harm others, 
the consequences of those bad choices will likely cause future harm, which ech¬ 
oes the Hindu concept of karma (Braswell et al., 1996). 

Criminal justice practitioners who make decisions without regard for the 
consequences can create harm to others. A police officer, for example, who bru¬ 
talizes a minority group suspect can create ill-will in the community. A defense 
attorney who degrades a rape victim during the trial of the rapist is revictimizing 
the victim. Such actions accomplish goals for the practitioner, but they cause 
bigger problems for the system. 

2. Care 

The notion of care comes from the work of Nel Noddings (1986) and describes 
the masculine and feminine approaches to behavioral choices. The masculine 



4 


Myers 


approach is premised on analysis, logic, and rationality, while the feminine ap¬ 
proach is premised on the concepts of nurturing, care, and responsiveness. 

Noddings explains that society has traditionally championed the masculine 
approach as the more successful method of decision making. However, she argues 
that while the masculine approach works in many cases, it ignores the contribu¬ 
tions of the feminine approach. She suggests that the feminine approach is actu¬ 
ally the more natural manner by which to resolve dilemmas. 

The feminine approach is a useful complement to the masculine approach 
in criminal justice decision making. Police officers, for example, who respond 
to domestic violence calls can make an arrest when necessary, which is a rational 
response to domestic assault. Arrest, however, does not always solve the problem 
and officers find themselves continually returning to the same address. The re¬ 
sponsive approach of counseling the female victim has reduced the number of 
return calls to the same address and has even reduced the number of domestic 
homicides. Such counseling involves suggesting that the victim remove herself 
from the home, perhaps going to a shelter, and seeking counseling at least for 
herself (Myers and Chiang, 1993). 

3. Mindfulness 

Mindfulness is a simple component of peacemaking that reminds individuals to 
think with their minds and their hearts. When people think only with their minds, 
they may forget the compassion and emotions needed to make better decisions. 
Logic alone is not sufficient. Individuals should take into account how others 
might feel, how others may perceive their decisions, and the actual impact of 
their decisions on all others (Braswell et al., 1996). 

Correctional officers, for example, who work with death row inmates 
awaiting execution can treat such inmates as objects or they can show compassion 
and treat these inmates as humans. Showing compassion does not mean acting 
leniently. The correctional officers have the task of working with inmates who 
must be put to death. They do not have to make the situation worse than it is. 
In fact, it is not their job to make it worse. 


0. Religious Ethics 

Religious ethics, probably the most common source of ethical guidelines in use, 
is derived from religious teachings and beliefs. Most sources of religious ethics, 
including Christianity, assume the presence of a god with the concepts of good 
and evil derived from that god. Followers of religious ethics respect the authority 
of their god and receive their guidelines on moral behavior from the particular 
teachings and interpretations of their doctrine (Pollock, 1994; Souryal, 1992). 



The Ethics of Criminal Justice Administration 


5 


Many professionals, including some criminal justice practitioners, use their 
religious value systems to guide their decisionmaking in the workplace. Instead 
of following the ethical guidelines of their profession, they use the often higher 
standards of their own religious values. 

E. The Ethics of Virtue 

The ethics of virtue assume several virtues possessed by individuals, enabling 
them to make the right choices. Moral virtue is based on character rather than 
logical reasoning. Instead of choosing to do the right thing, virtuous people pos¬ 
sess positive character traits that allow them to resist temptations (Pollock, 1994). 
A virtuous police officer, for example, would not even think about pocketing 
some of the cash from a drug bust. For some officers, taking some of the cash 
could be justified on utilitarian grounds. The virtuous officer, possessing the traits 
of honesty and humility, would not even think of him- or herself when faced 
with the cash. 

F. Moral Development Theory 

The discipline of psychology has contributed much to ethical decision making 
with an understanding of the role of cognitive development in behavior choices. 
The premise is that moral development is consistent with the levels of cognitive 
development that a person grows through from infancy to adulthood. At the lower 
levels of cognitive development, the person has little moral reasoning ability. An 
infant, for example, has no conception of right or wrong. 

These concepts must be taught and can only be taught as the child’s cogni¬ 
tive abilities develop to a level that permits such learning. As youths progress 
toward adulthood, their cognitive abilities permit them to learn about their world 
using simple dichotomies, allowing for a vast understanding of many important 
concepts such as right and wrong, good and evil, life and death, and others. 

As the brain continues to develop, the person begins to realize that these 
simple dichotomies were only a heuristic device for understanding the complexity 
of the world. Actually, the world is so complex that the shades of gray between 
these simple dichotomies must be acknowledged. According to moral develop¬ 
ment research, most individuals never reach this higher level of cognitive devel¬ 
opment that allows them to appreciate these complexities or to understand their 
role within a universal environment. Society compounds the problem by teaching 
everything in dichotomies and rarely reaches beyond the simplistic to help indi¬ 
viduals understand the world. 

Failure to reach the higher levels of cognitive development means that 
many people do not achieve proper levels of moral development. Individuals with 
mental development problems, poor learning environments, or both, are noted for 



6 


Myers 


making bad choices. The application of this theory to criminal justice decision 
making is quite simple. If individuals do not have proper levels of cognitive 
development, for whatever reasons, they may be expected to make poor moral 
decisions (Pollock-Byme, 1991). 


IV. APPLICATION 

After reviewing some of the major theoretical approaches, it is important to un¬ 
derstand the application of those theories to the critical areas of policing, courts, 
and corrections. Each of the theories previously reviewed was developed outside 
of the criminal justice discipline and has been applied to criminal justice by crimi¬ 
nal justice scholars engaged in criminal justice ethics research and writing. The 
following sections are an overview of the major applications. 


A. Police 

Law enforcement has received the most attention regarding ethics in the criminal 
justice field primarily because of the historical development of the discipline. 
This does not mean that ethical issues have not plagued courts and corrections 
just as long. Law enforcement, in an effort to increase quality and achieve profes¬ 
sional status, has attempted to improve the decision making of officers. 

1. Deception 

Because criminal behavior is deceptive and often requires deception to resolve 
it, police work is inherently deceptive. In an article by Skolnick (1982), he ex¬ 
plains the three stages in which police deception occurs: investigative deception, 
interrogation deception, and testimonial deception. Investigative deception is de¬ 
ception used to determine the circumstances of a crime and may involve lying 
to a witness or victim to obtain information. Investigative deception is most ac¬ 
ceptable because there are few rules or laws prohibiting use of deception in ob¬ 
taining basic information. 

However, at the interrogation stage, the amount of deception increases and 
is accepted less. Before the Miranda and Mapp decisions, law enforcement inter¬ 
rogation might have involved the overt pressure of beatings and threats to obtain 
information. But, with an increased emphasis on individual rights, the Miranda 
and Mapp decisions forced officers who used these tactics to become more covert 
and engage in psychological tactics, such as good cop/bad cop to obtain informa¬ 
tion. So while it was less acceptable to use interrogation deception, some officers 
still found a way to get their information using deceptive practices. 



The Ethics of Criminal Justice Administration 


7 


The last stage of detecting, the testimonial stage, is where deception is least 
acceptable. Perjury is a crime. However, it is clear that if illegal deception is 
used at the interrogation stage it will mean lying in court to obtain the goal of 
conviction. 

Skolnick (1982) concludes that deception is a natural part of detecting. 
Consequently, police officers are expected to break the law to solve crime. It 
probably comes as no surprise then that law enforcement might be plagued with 
unethical behaviors. 

2. Coercion 

Understanding the unethical behavior of law enforcement personnel also means 
understanding the potential for officers to engage in unethical behaviors that often 
result from the coercive nature of law enforcement (Guyot, 1991). Police officers 
are granted the authority to deprive people of their freedom, using the law as a 
guide. However, it would be naive to assume that all officers carry out their 
authority properly. When people are granted authority over others, there is a great 
potential to misuse that authority due to greed, revenge, power, or even peer 
pressure. Citizens are often quick to criticize police officers for the misuse of 
authority, and many law enforcement policies are designed to prohibit such 
abuses. However, little thought may be given to the temptation to misuse author¬ 
ity; little training or preparation may be provided to help officers resist tempta¬ 
tion. 

3. Corruption 

Corruption by police officers is closely related to the coercive aspects of law 
enforcement. In exercising their authority, officers may be confronted with citi¬ 
zens who want the officer to overlook something they have done. Fellow officers 
may want the officer to take part in their corrupt activities and protect their efforts. 

Again, temptation is the guiding force behind such behaviors. Law enforce¬ 
ment officers often are not paid very well and may be tempted to supplement 
their incomes. Officers, unlike other citizens, are also exposed to drugs, large 
quantities of money, and other marketable products that may be hard to resist 
(Murphy and Caplan, 1991). 

4. Use of Force 

Excessive use of force by police officers has probably received the most negative 
attention. Officers are prohibited from using unnecessary force, but little attention 
has been given to what constitutes unnecessary force. When is too much physical 
force uncalled for and when should a gun not be discharged? It is a simple matter 



8 


Myers 


to train an officer on when to engage in these behaviors, but it is more complicated 
when officers actually have to make decisions on the street. 

Use of force decisions are complicated by the crisis nature of the event. 
Decisions have to be reached quickly. Peer or citizen pressure may be an influ¬ 
ence. Finally, the inherent biases of officers may lead them toward choices that 
they might not otherwise make (Fyfe, 1988). 

5. Gratuities 

The acceptance of gratuities by police officers is a sensitive ethical topic. Some 
citizens feel predisposed to offer gifts to officers, who may feel rude in rejecting 
them (Kania, 1988). When questioned, officers know that accepting large ticket 
items is wrong but see no problem with small benefits, such as free coffee or 
discounted food. 

The difficult aspect of training officers about the influence of gratuities is 
getting them to understand the slippery slope of ethical decisionmaking (Sher¬ 
man, 1982). The principle to teach officers is that any gift is a request for a favor, 
either now or later. The person offering the gift is likely courting that favor, 
whether the officer realizes it or not. For example, free coffee may mean numer¬ 
ous return visits by officers, which enhances security for an establishment. This 
is a level of security they have not paid for and it deprives others of the right to 
security granted to all within a community. 

Officers may nevertheless resist this knowledge. They like the gifts, and 
they feel they should be rewarded for their efforts. Again, this is because they 
do not realize the consequences for themselves or their agency. They do not 
realize their potential to accept bigger gifts later on, nor do they think about the 
perceptions of citizens about them and their agency as the acceptances of gifts 
are witnessed by others. 

6. Learning Ethics 

Many rookie police officers enter the field with a good set of values to guide 
them, but the peer pressure exerted by some veteran officers can make them lose 
sight of those values (Sherman, 1982). For this reason administrators must be 
careful placing officers with field training officers who may be poor role models. 
In addition, rookie police officers should be selective and apply only to those 
agencies with a progressive reputation, untainted by consistent examples of un¬ 
ethical law enforcement behaviors. 

7. Codes of Ethics for Law Enforcement 

Many agencies have attempted to develop codes of ethics for their officers, but 
most codes have been doomed to failure because they contain a set of rules to 



The Ethics of Criminal Justice Administration 


9 


govern behaviors. Many of those rales make it impossible for officers to do their 
jobs, so the rules are assigned to “code heaven,” and the behaviors persist. 

For a code of ethics to be useful, it would have to be relevant to the activities 
of police officers. According to Davis (1991), a code of ethics must first be devel¬ 
oped by those officers who will use it to ensure its acceptance. If the code is 
developed outside the agency or by agency administrators, personnel will not 
accept it because they will believe the developers did not take their needs into 
account, even if the developers did. 

Additionally, the code of ethics must not focus on rules only. Only those 
behaviors that officers must conform to can be worded as rales. Other behaviors 
must be analyzed to determine whether they are principles to be given consider¬ 
ation or ideals that would just be good to follow anyway. Principles and ideals 
must be worded such that officers understand the intention of the elements of 
the code. Rules use “must,” principles use “should,” and ideals use the word 
“ought.” 

8. Training and Ethical Dilemmas 

Ethical behavior can only be expected if the agency climate supports it. Preservice 
and inservice ethics training must not only be mandatory but also be taken seri¬ 
ously by the command staff and trainers. It cannot be taught as a set of rules to 
govern behavior. It must be taught as a series of typical ethical dilemmas that 
might be faced, combined with potential solutions to resolve them (Pollock and 
Becker, 1995). Officers will forget written rales, but they are not as likely to 
forget real-world scenarios that actually teach them how to use rales, principles, 
and ideals. 

B. Courts 

In public opinion polls, citizens typically rate their trust in lawyers very low in 
comparison to other professionals. These low levels of trust are usually attributed 
to attorneys' overzealous representation of clients, actual experience with the 
courts, high fees, and charges of unethical behaviors (Myers, 1996). To be an 
occupation with such limited support, the legal field stands above other criminal 
justice occupations in their concern for ethical behavior. The American Bar Asso¬ 
ciation (ABA) has promulgated a code of ethics that legal professionals must 
operate within and is used to sanction them for their errors. 

1. Professional Responsibility 

Legal professionals are taught in their law school and inservice training about 
the importance of professional responsibility. The ABA Code of Ethics serves 
as a set of standards by which lawyers must act. Such behaviors include main- 



10 


Myers 


taining the confidences of their clients, avoiding conflicts of interest, and charging 
reasonable fees (Rotunda, 1995). Unfortunately, many of these ethical guidelines 
often are ignored in the interest of winning cases. Even with the ABA Code 
serving as a set of sanctions, clients may not know that they can proceed against 
a lawyer and, if they do, they may perceive that nothing will be done (Cohen, 
1985). 

2. Misconduct 

Legal misconduct includes behaviors that inhibit the court from discovering the 
truth, but for which there may be limited sanctions. According to Gershman 
(1986), there are two types of legal misconduct: courtroom and forensic. Court¬ 
room misconduct refers to lawyers attempting to influence the court through the 
use of inadmissible evidence. Even though the judge may tell the jury to disregard 
the evidence, the jury may still be influenced. 

Forensic misconduct refers to any other activity a lawyer may engage in 
that prevents the jury from reviewing the evidence legally. These activities are 
typically unobtrusive and are designed to, almost subliminally, influence the jury. 
The angel pins worn by the prosecution in the OJ Simpson criminal trial would 
be an example of this type of activity. 

Punishment for legal misconduct would appear to be called for when the 
misconduct inhibits the court from discovering the truth, but sanctions for such 
behaviors are fairly limited. According to Gershman (1996), when an appeal is 
launched against such behaviors, the appellate courts typically determine that the 
behavior resulted in harmless error. A decision of harmless error means that the 
misbehavior was only one element of the evidence that resulted in the outcome 
of the case and not the only evidence used to obtain the verdict. 

3. Moral Character 

The goal of many lawyers to win at all costs may cause lawyers to lose sight of 
their moral characters. In attempting to win rather than obtain the truth, they may 
be serving as what Cohen (1985) calls pure legal advocates. The pure legal advo¬ 
cate is contrasted with the moral agent concept of a lawyer who strives to act 
morally in all legal actions. 

4. Judicial Ethics 

Professional responsibility also applies to lawyers in their roles as judges. The 
Model Code of Judicial Conduct approved by the ABA in 1990 was a substantial 
revision to earlier efforts to guide proper judicial behavior (Rotunda 1995). Un¬ 
ethical behavior by judges is called judicial misconduct and can range from accu¬ 
sations of incompetence and laziness to outright illegal behaviors (Neubauer, 



The Ethics of Criminal Justice Administration 


11 


1992). While there are formal mechanisms such as judicial conduct commissions 
to handle accusations against judges, the tendency is for the judicial body to 
govern themselves and handle these problems on an informal basis whenever 
possible (Neubauer, 1992; Fitzpatrick 1988). A typical problem often handled 
informally is a judge with a drinking problem that interferes with judicial func¬ 
tion. 


5. Discretion 

The misuse of discretion is most likely to be associated with the role of the 
prosecutor. The prosecutor is responsible for determining whether the criminal 
law will be invoked, with the bringing of charges against the accused. The discre¬ 
tionary nature of determining whether to charge should be based on achieving 
justice, but justice can mean different things to different people. As such, many 
factors of questionable ethical value may come into play in the decision to charge. 
The factors may include the prosecutor’s particular biases against certain types 
of crime, biases in favor of or against particular citizens, and whether a conviction 
can be achieved (Pollock, 1994). 

The potential for abuse by the prosecutor can probably only be controlled if 
guidelines are placed on charging decisions. Prosecutorial guidelines on charging 
decisions, much like those used for sentencing, might aid in controlling unethical 
charging decisions (Gertz and Myers, 1990). 


6. Plea Bargaining 

Plea bargaining is the process used to achieve convictions in over 90% of all 
criminal cases (Neubauer, 1992). Regardless of the strong reliance on this pro¬ 
cess, critics argue that plea bargaining is unethical because it negates the adversar¬ 
ial process and the right to due process for the accused. In essence, it places too 
much power in the hands of the state and deprives the accused of the assumption 
of innocent until proven guilty. 

Chilton (1995) explains that several attempts have been made or suggested, 
including abolition of plea bargaining, replacement with the inquisitorial system, 
and regulation of the practice, to reform the plea bargaining process. Chilton 
argues that neither abolition nor replacement will achieve the fairness necessary 
to improve plea bargaining. Rather, reform, through written justification of the 
bargain by the prosecutor, is the only method that might achieve an ethical basis 
for the bargain. With a written justification, the prosecutor would have to justify 
the rationale for the plea bargain, which would leave the decision open to review 
by others. The potential to be reviewed would limit the prosecutor’s potential to 
abuse the process. 



12 


Myers 


C. Corrections 

The issue of unethical behaviors in corrections has mainly centered on institu¬ 
tional corrections and the lack of professional employees. The professional repu¬ 
tation of institutional corrections has improved, but the increasing numbers of 
correctional clients and the growth in community corrections has created ethical 
dilemmas never before imagined. 


1. Discretion 

The potential for unethical actions by correctional employees stems mainly from 
the large amounts of discretion given to them. Much of their activity would be 
termed “low-visibility discretionary decisions,” meaning that there is little to 
no supervision of their behaviors (Neubauer 1992). The solutions to this are to 
improve hiring practices and provide better supervision of behaviors. 


2. Prison Corruption 

Prison corruption typically results from the low pay of correctional employees, 
unqualified employees, and the low-visibility discretionary decisions they make. 
Public perception is that most contraband entering a prison comes from visitors, 
but they might be surprised to find that the majority of it conies from employees 
(McCarthy, 1984). 

a. Relations with Inmates 

One of the difficulties faced by correctional employees is to maintain distance 
from offenders. In many cases, employees are not trained about maintaining pro¬ 
fessional distance, and when they are trained, they may fail to realize the impor¬ 
tance of that distance. Even the simplest of friendships with an offender can lead 
to expectations regarding the relationship. Giving an inmate a contraband ciga¬ 
rette may seem petty, but the next request could be for something more serious, 
such as drugs. The correctional employee is then faced with the prospect of disci¬ 
plinary action for the previous contraband unless the drugs are delivered (McCar¬ 
thy, 1984). 

b. Malfeasance 

The correctional environment is also conducive to malfeasance by correctional 
employees. There are so many supplies and materials needed to run an institution 
that some correctional officers find it a simple task to walk away with merchan¬ 
dise. More enterprising employees find ways to extort inmates and their families 
(McCarthy, 1984). 



The Ethics of Criminal Justice Administration 


13 


3. Probation and Parole Corruption 

Although little research had been done on unethical behaviors in community 
corrections, Whitehead (1995) has contributed much to the understanding of the 
actual nature of unethical behavior in probation and parole. Much of the unethical 
behavior centers around probation and parole officers not fulfilling the basic tasks 
of their jobs. One reason is caseload. With the growing numbers of community 
corrections clients, the overburdened officer may find it difficult to complete the 
basic tasks of the job for each client. A second reason is that some officers claim 
that they see no rationale for the treatment of clients because there is no agreed 
upon theory to guide suitable treatment. 

4. Ethics of Correctional Management 

Many of the ethics problems in corrections can be traced to poor correctional 
management. Poorly trained and uneducated managers have often been part of 
the problem rather than the solution. Today, as corrections has continued to pro¬ 
fessionalize, better correctional managers are finding their way to the top with 
many state-of-the-art solutions to managing their employees. Providing training 
on unethical behaviors and the potential penalties is one such solution (McCarthy, 
1984). 


V. CURRENT ETHICAL ISSUES FACING 
CRIMINAL JUSTICE 

After a review of some of the major ethical issues in criminal justice, it is impor¬ 
tant to mention briefly some of the current dilemmas confronting criminal justice 
practitioners. In the area of criminal justice management, numerous examples 
of unethical behaviors have emerged in relation to the growing diversity of the 
workforce and the criminal justice clientele. Accusations of racial and gender 
discrimination, sexual harassment, and the lack of accommodations for the physi¬ 
cally challenged are examples of the increasing numbers of complaints, griev¬ 
ances, and lawsuits facing criminal justice today. Solutions that have shown great 
potential include improved hiring practices that eliminate employees who are 
more likely to commit such behaviors, improved training and management, and 
a focus on human relations-based diversity education (Myers, 1998). 

Excessive use of force by both police officers and correctional personnel 
continues to be a major problem. The search for nontraditional administrators 
and better management practices have tended to improve some of the worst situa¬ 
tions, such as the conditions within the Los Angeles and New Orleans Police 
Departments. 



14 


Myers 


Finally, ethical problems facing the criminal courts have continued to occur 
at such a rate that a continuous decline in loss of confidence in the courts has 
been documented over the last several decades. New efforts at improved citizen 
knowledge of the courts and attempts to meet the needs of the general public are 
trends that may reverse this loss in confidence (Myers, 1996). 


VI. CONCLUSION 

The ethical problems facing criminal justice are numerous, but efforts to reduce 
these problems abound. Attempts to improve hiring practices and training meth¬ 
ods should reduce unethical choices by criminal justice practitioners. So much 
attention has been focused on basic skills training that ethics training has tended 
to be ignored. Now criminal justice administrators are beginning to realize that 
ethics knowledge is a basic skill. 


REFERENCES 

Bentham, J. (1970). The Principles of Morals and Legislation, Hafner Publishing Com¬ 
pany, Darien, CT. 

Braswell, M., McCarthy, B., and McCarthy, B. (1996). Justice, Crime, and Ethics, 2nd 
ed., Anderson Publishing Company, Cincinnati, OH. 

Chilton, B. (1995). Reforming plea bargaining to facilitate ethical discourse, in Justice, 
Crime, and Ethics, 2nd ed., M. C. Braswell, B. R. McCarthy, and B. J. McCarthy, 
eds., Anderson Publishing Company, Cincinnati, OH. 

Cohen, E. D. (1985). Pure legal advocates and moral agents: two concepts of a lawyer 
in an adversary system. Criminal Justice Ethics 4: 38-59. 

Davis, M. (1991). Do cops really need a code of ethics? Criminal Justice Ethics 10: 14- 
28. 

Fitzpatrick, C. T. (1988). Misconduct and disability of federal judges: The unreported 
informal responses. Judicature 71: 282-283. 

Fyfe, J. J. (1988). Police use of deadly force: Research and reform, Justice Q. J: 165— 
205. 

Gershman, B. L. (1986). Why prosecutors misbehave. Criminal Law Bull. 22: 131-143. 

Gertz, M. G. and Myers, L. B. (1990). Prosecutorial decisionmaking in the Netherlands: 
A research note, J. Criminal Justice 18: 359-368. 

Guyot, D. (1991). Policing as Though People Matter, Temple University Press, Philadel¬ 
phia, PA. 

Kania, R. R. E. (1988). Should we tell the police to say “yes” to gratuities? Criminal 
Justice Ethics 7: 37-48. 

Kant, I. (1964). Groundwork of the Metaphysics of Morals, Harper and Row, New York. 

Kleinig, J. and Smith, M. L. (1997). The developments of criminal justice ethics education, 



The Ethics of Criminal Justice Administration 


15 


in Teaching Criminal Justice Ethics: Strategic Issue, J. Kleinig and M. L. Smith, 
eds. Anderson Publishing Company, Cincinnati, OH, p.vii. 

McCarthy, B. J. (1984). Keeping an eye on the keeper: Prison corruption and its control. 
Prison J. 64: 113-125. 

Mill, J. S. (1979). Utilitarianism, Hackett Publishing Company, Indianapolis, IN. 

Murphy, P. V. and Caplan, G. (1991). Fostering integrity, in Local Government Police 
Management, W. A. Geller, ed.. International City Management Association, Wash¬ 
ington, D.C. 

Myers, L. B„ and Chiang, C. P. (1993). Law enforcement officer and peace officer: recon¬ 
ciliation using the feminine approach, J. Crime Justice 16: 31-43. 

Myers, L. B. (1996). Bringing the offender to heel: views of the criminal courts, in Ameri¬ 
cans View Crime and Justice: A National Public Opinion Survey, T. J. Flanagan 
and D. R. Longmire, eds.. Sage Publications, Thousand Oaks, CA. 

Myers, L. B. (1998). A positive approach to cultural diversity training, Texas Jail Assoc. 
Newsletter 1: 11-13. 

Neubauer, D. W. (1992). America’s Courts and the Criminal Justice System, 4th ed., 
Brooks/Cole Publishing Company, Pacific Grove, CA. 

Noddings, N. (1986). Caring: A Feminine Approach to Ethics and Moral Education, Uni¬ 
versity of California Press, Berkeley, CA. 

Pollock, J. M. (1994). Ethics in Crime and Justice: Dilemmas and Decisions, 2nd ed., 
Wadsworth Publishing Company, Belmont, CA. 

Pollock, J. M. and Becker, R. F. (1995). Law enforcement ethics: using officers’ dilemmas 
as a teaching tool, J. Criminal Justice Ed. 6: 1-20. 

Pollock-Byme, J. M. (1991). Moral development and corrections, in Justice, Crime, and 
Ethics, M. C. Braswell, B. R. McCarthy, and B. J. McCarthy, eds., Anderson Pub¬ 
lishing Company, Cincinnati, OH. 

Rotunda, R. D. (1995). Professional Responsibility, 4th ed.. West Publishing Company, 
St. Paul, MN. 

Sherman, L. W. (1978). The Quality of Police Education, Jossey-Bass, San Francisco, 
CA. 

Sherman, L. W. (1982). Ethics in Criminal Justice Education. Hastings Center. Hastings- 
on-Hudson, NY. 

Skolnick, J. (1982). Deception by police, Criminal Justice Ethics 1: 40-54. 

Souryal, S. S. (1992). Ethics in Criminal Justice: In Search of the Truth, Anderson Pub¬ 
lishing Company, Cincinnati, OH. 

Whitehead, J. T. (1995). Ethical issues in probation and parole, in Justice, Crime, and 
Ethics, 2nd ed., M. C. Braswell, B. R. McCarthy, and B. J. McCarthy, eds., Ander¬ 
son Publishing Company, Cincinnati, OH. 



This Page I nbentionally Left Blank 



2 

Trends in Crime 


Neal Slone 

Bloomsburg University of Pennsylvania, Bloomsburg, Pennsylvania 


I. INTRODUCTION 

News reports over the past several years have broadcast moderate to deep reduc¬ 
tions in crime across the United States. Typical of these reports was a press 
release issued by the Federal Bureau of Investigation (FBI) on May 17. 1998, 
which noted that crime in 1997 had declined for a sixth consecutive year. Crime 
rates, it added, were lower in all regions of the country and across all categories 
of serious crime. Despite these reports, more Americans—white, black, affluent, 
poor, young, and old—believed their neighborhoods suffered from more crime 
in 1997 than in 1996 (Gallup, 1997). And for a fourth consecutive year, Ameri¬ 
cans in 1997 identified crime and violence as the most serious social problems 
facing our nation (Gallup, 1994-1997). 

Following the highly publicized 1984 case of Bernhard Goetz, New York’s 
“subway vigilante,” Dennis Kenney (1988) found that the fear of violent crime 
in New York subways was greatly exaggerated relative to its actual risk. A decade 
before Kenney’s research, Charles Silberman (1978:7) noted that “street crime 
is a lot less dangerous than riding in an automobile, working around the house, 
going swimming, or any number of activities in which Americans engage without 
apparent concern.” Indeed, for most Americans, the perceived risk of crime is 
greater than the actual risk, notwithstanding Samuel Walker’s (1998:6) reminder 
that, in regard to actual risk, “a lot depends on who you are.” 

Why are we so concerned about crime, and why are we so concerned now ? 
A variety of factors unrelated to actual fluctuations in crime rates contribute to 
public concern about crime. First, the war on crime has become a political man¬ 
date. Being targeted by a political adversary as soft on crime subverts election 


17 



18 


Slone 


campaigns, as former Massachusetts Governor Michael Dukakis learned in his 
1988 presidential bid against George Bush (Kappeler et ah, 1993: 213). Second, 
network and cable television teem with an endless lineup of “real life” crime 
shows and news programs. O.J. Simpson and Nicole Brown, JonBenet Ramsey 
and Ted Kaczynski are household names associated with crimes that occurred 
with little forewarning and that caused anguish for an entire nation. The recent 
spate of violent attacks in our public schools and their media coverage only 
heighten our fear of crime. Like the tip of an iceberg, however, political sound 
bites and highly celebrated crime cases that gamer media attention inform us of 
a surface danger but indicate little about what lies below. 

This chapter delves below the surface in describing crime in the United 
States. It introduces a few of the primary data sources used in crime research, 
describes trends in crime, and profiles crime victims and offenders. For students 
of public policy, the important message to be learned from this chapter is to know 
what data do and do not say. Crime statistics are easily misinterpreted. The man¬ 
ner in which statistics are understood and reported affects our perceptions of 
crime as well as the reality of crime communicated to others. 


II. SOURCES OF CRIME DATA: THE UCR AND NCVS 

What we know about national trends in crime comes primarily from two data 
sources, Uniform Crime Reports (UCR) and the National Crime Victimization 
Survey (NCVS). The Uniform Crime Reports, compiled by the FBI since 1929, 
are considered the most comprehensive source of crime data. (See Bureau of 
Justice Statistics [BJS] 1995 for a brief history of the UCR program.) 

UCR data are compiled from monthly police reports submitted to the FBI 
by local, county, and state law enforcement agencies. In 1996 police departments 
participating in the UCR program represented 95% of the nation’s total popula¬ 
tion (FBI, 1997a). For reporting purposes, the UCR groups offenses into two main 
“parts.” Part I offenses include four violent crimes (homicide, rape, robbery, and 
aggravated assault) and four property crimes (burglary, larceny, motor vehicle 
theft, and arson). Offenses known to the police, arrests, and crimes cleared are 
recorded for Part I offenses. Part II offenses include 21 additional crimes ranging 
from prostitution, gambling, and disorderly conduct to weapons possession and 
embezzlement. Arrests only are recorded for Part II offenses. Uniform Crime 
Reports are published annually under the title Crime in the United States , and 
special topic UCR reports are published throughout the year. Periodically the 
FBI issues press releases summarizing its preliminary analysis of UCR data. 

A number of sociologists have questioned the accuracy of UCR data and 
their value for criminological research (Black, 1970; Seidman and Couzens, 



Trends in Crime 


19 


1974; Hindelang, 1981). One concern is that UCR offenses known data underesti¬ 
mate the incidence of crime because police counts of known offenses are depen¬ 
dent on citizen reports of crime. Therefore, these data do not measure actual 
levels of crime. Another problem is that variation across offense types and change 
over time in the percentage of victims who report crime to the police make the 
interpretation of UCR data subject to error. Finally, differences in local police 
administration affect how offenses are classified and whether or not they are 
reported to the FBI, with the result that UCR data may be unreliable. Despite 
these limitations, UCR data remain the most widely cited sources of crime data. 

Partially in response to problems associated with the UCR program, the 
National Opinion Research Center (NORC) was commissioned in 1965 to con¬ 
duct the nation’s first victimization survey (President’s Commission, 1967). 
NORC obtained its data by surveying people about their experiences as crime 
victims. Its survey findings indicated that the dark figure of crime, offenses that 
occur but go unreported to the police, was alarmingly high. Overall victim survey 
reports of crime were more than double the number of UCR offenses known to 
the police. Victim reports of rape were four times higher than the UCR figures, 
and reports of burglary, aggravated assault, and larceny were between two and 
three times higher. 

Although the NORC survey was a one-time affair, the Bureau of Justice 
Statistics, an agency within the US Department of Justice, has been conducting 
the National Crime Victimization Survey since 1973. NCVS results are published 
annually under the title Criminal Victimization in the United States. Additional 
reports analyzing NCVS data are published by the Bureau of Justice Statistics 
throughout the year. 

The NCVS employs a multistage rotation sample, with households queried 
seven times at 6 month intervals and replacement households added every 6 
months. In 1996, the sample included an estimated 94,000 persons in 45,000 
households (BJS, 1997a). NCVS interviewers gather basic demographic informa¬ 
tion about household occupants such as age, race, marital status, educational at¬ 
tainment, and household income. Details of victim experiences are collected from 
persons 12 years of age and older. Data collected include information on the 
nature or type of victimizations, offender characteristics (for violent crimes), and 
whether or not the victimization was reported to the police. 

NCVS victim data are generally regarded as more accurate than UCR of¬ 
fenses known data in their overall count of crime. However, NCVS data have 
their own limitations (Singer, 1978; Sparks 1981). First, published victimization 
counts of crime are estimated from sample findings and subject to sampling error. 
Second, victim reports of crime may be inaccurate. For instance, misinterpreta¬ 
tion of events may contribute to the overreporting of crime, such as when a lost 
wallet is reported as stolen; in addition, embarrassment, forgetfulness, or fear of 
reprisal may lead to the underreporting of crime (Senna and Siegel, 1996). 



20 


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Because a victim report to the police is recorded as a UCR offense known 
only after an investigation concludes the report is founded, inaccurate victim 
reporting is less problematic in the compilation of UCR data. Recent redesigns of 
NCVS and UCR data collection procedures address some of the methodological 
problems associated with these two programs (BJS, 1993, 1997b). Although it 
is possible to identify shortcomings in any data collection process, especially 
ones as ambitious as the UCR and NCVS, the key point lies in recognizing what 
these data sources can and cannot tell us as well as recognizing their unique and 
complementary strengths. 


III. TRENDS IN CRIME 

There are two primary methods of reporting crime trends in criminological re¬ 
search. One method is to report change in counts of crime: what the UCR refers 
to as the crime index total (i.e., the total number of offenses known to the police) 
and the NCVS refers to as the number of victimizations. A second method is to 
report change in crime rates. A crime rate is calculated by dividing a crime count 
by a population base (e.g., the number of persons in the United States). The 
resulting value is multiplied by a constant, typically 100,000 in criminal justice 
research. Between 1960 and 1996, the UCR crime index total for the United 
States increased fourfold from 3.4 million to nearly 13.5 million (BJS, 1997c; 
FBI, 1997a). For this same period, the UCR crime rate increased 2.7 times, from 
1,887 to 5,079 offenses known to the police per 100,000 persons. 

A. A Precautionary Note 

Notice that for the period 1960-1996 the crime rate increased less rapidly, 2.7 
times, than the crime index total, nearly 4 times. Crime rates increase at a slower 
pace than crime counts whenever the base used to calculate the crime rate, in 
this case the US population, also increases. Crime rates actually fall at the same 
time that crime counts rise when, for the period of interest, population growth 
outnumbers the increase in known offenses or victimizations. This is precisely 
what happened between 1981 and 1990, for example. Despite an increase in the 
crime index total of over 1 million offenses, the UCR crime rate for this period 
declined by 38 offenses per 100,000 persons. 

Which of these statistics, crime rates or crime counts, is better to report? 
The answer depends on whether the policymaker wishes to communicate infor¬ 
mation about the incidence of crime or about the likelihood of crime. Report 
change in crime counts if the purpose is to chart trends in the incidence or total 
amount of crime: Is there more crime now than at some previous time? On the 
other hand, report change in crime rates if the purpose is to study change in 



Trends in Crime 


21 


the likelihood of crime: Is the risk of crime greater now than it was before? 
The critical point is that researchers need to be clear about what they want to 
say and choose the appropriate data. 

B. Long-Term Trends in Crime 

The US crime rate escalated rapidly during the 1960s. A review of UCR data 
indicates that between 1960 and 1969 the crime rate nearly doubled from 1,887 
to 3,680 known offenses per 100,000 persons (BJS, 1997c). Violent crime esca¬ 
lated more rapidly than property crime during the 1960s, with the robbery rate 
increasing 2.5 times. By 1969 violent crime accounted for 8.9% of the crime 
index total (i.e., the total number of offenses known to the police). Crime rates 
continued to climb through the 1970s. In 1979 the US crime rate stood at 5,566 
offenses per 100,000 persons, an increase of 51% in 10 years. As was true during 
the 1960s, violent crime in the 1970s rose more rapidly than property crime. 
Rape rates exhibited the greatest increase: up 85% for the decade. By 1979 violent 
crime accounted for 9.9% of the crime index total. 

The US crime rate reached a record high in 1980, peaking at 5,950 offenses 
per 100,000 persons (BJS, 1997c). During the remainder of the decade crime 
rates stabilized. Although the crime index total rose by nearly 850,000 offenses 
between 1980 and 1989, the 1989 crime rate was actually several percentage 
points below the 1980 level. The incidence of crime had increased, but the risk 
of crime had not. 

The decline in crime rates occurring during the 1980s is attributable mostly 
to a reduction in property crime, which dropped 5% during this period. Violent 
crime rates, on the other hand, rose a combined 11%, with the aggravated assault 
rate increasing by over 28%. By 1989 violent crime accounted for 11.6% of the 
crime index total. The pattern of decline witnessed in the 1980s has continued 
into the present decade. 

Crime rates have declined annually since 1991, and the 1996 rate of 5,079 
offenses per 100,000 persons is nearly 15% below the high water mark set in 
1980 (FBI, 1997a). For the first time ever, property and violent crime have been 
declining simultaneously. Predictably, policy makers and politicians have been 
quick to take credit for these reductions in crime. In 1996, for instance, William 
Bratton, then Commissioner of New York City’s Police Department, attributed 
declining rates of crime in New York to the city’s new zero-tolerance crime 
policies (Lacayo, 1996). Although it is tempting to conclude that “get tough” 
crime measures such as the war on drugs, three strikes legislation, and zero- 
tolerance policies have succeeded in reducing crime, there is mounting evidence 
that these measures have done little to lower crime (cf. Walker, 1998). 

Rather than crediting crime policy, criminologists prefer a demographic 
explanation of long term fluctuation in crime trends: teens and young adults are 



22 


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overwhelmingly responsible for crime. UCR data indicate, for instance, that 
45.4% of all persons arrested in 1997 were under 25 years of age (FBI, 1998). 
Crime rates increased rapidly during the 1960s because baby boomers, who made 
up a large proportion of the US population, were in their peak crime years (Ferdi¬ 
nand, 1970). By the same token, crime rates stabilized during the 1980s and have 
declined during the 1990s because baby boomers have aged, and older people 
commit less crime (Steffensmeier and Harer, 1991). Recent change in the age 
distribution of American society has led several criminologists to predict that 
crime rates will climb again during the next 10-15 years (Wilson, 1994; Fox, 
1996; see also Levitt, 1999). 


C. Homicide 

FBI Uniform Crime Report data for the combined category ‘ ‘murder and nonneg- 
ligent manslaughter” are the most comprehensive source available for the crime 
of homicide. Murder refers to intentional killings and deaths that occur while 
committing or attempting to commit another crime (e.g., felony murder). Non- 
negligent manslaughter refers to intentional killings that occur under extreme 
provocation but that are not legally justified. The crime of negligent manslaugh¬ 
ter, such as an accidental killing by a drunk driver, is excluded from the UCR 
count. 

Homicide rates doubled in the 20-year span from 1960 to 1980 (BJS, 
1997c). Since reaching a peak in 1980, these rates have declined by approxi¬ 
mately 20%. Homicide rates in metropolitan areas are about two times higher 
than in smaller cities and rural communities, but this gap has lessened during 
the past few years as murder rates have declined most sharply in large urban 
areas. Approximately 75% of homicide victims are male. This figure has re¬ 
mained steady since the early 1960s. 

UCR data for 1996 indicate that for homicides in which the relationship 
between the offender and victim can be ascertained, 58% are acquaintance mur¬ 
ders (including friend and neighbor), 22% are stranger murders, and 19% are 
family murders (FBI, 1997a). A recent Bureau of Justice Report notes that murder 
by intimates, defined to include current or former spouses, boyfriends, and girl¬ 
friends, has actually declined 36% since 1976 (BJS, 1998). Within the family, 
wives are more than three times more likely than husbands to be murdered; broth¬ 
ers are five times more likely than sisters. 

Since the late 1980s, the percentage of white and black homicide victims 
has remained about equal (BJS, 1997c). This reverses two earlier trends, the first 
from the 1960s through early 1970s when black murder victims outnumbered 
whites, the second from the mid-1970s through late 1980s when the reverse was 
true. These data should not be misinterpreted, however. In terms of their relative 



Trends in Crime 


23 


numbers in the US population, blacks are far more likely than whites to be victims 
of homicide. This is true of both females and males and across all age groups. 

The data speak for themselves. In 1996, a 14-17-year-old black male was 
nearly seven times more likely than his white counterpart to be a homicide victim; 
a black female in this age group, four times more likely than her white counterpart 
(FBI, 1997a). The black-white gap in homicide rates only increases for older 
age groups. As striking as these differences are, they represent a marked decline 
from the figures for the late 1980s and early 1990s. 

D. Rape and Sexual Assault 

The NCVS and UCR differ in their definitions and measurement of rape and 
sexual assault. The NCVS defines rape to include forced sexual intercourse that 
results from either psychological coercion or physical force. Both males and fe¬ 
males can be victims of rape. This differs from sexual assault, a category that 
includes unwanted sexual contacts such as grabbing and fondling that do not 
necessarily involve the use of force. NCVS interviewers only started asking re¬ 
spondents direct questions about sexual assaults other than rape following its 
redesign in 1992, therefore an unknown number of sexual assaults prior to 1992 
may have been reported as rape, attempted rape, or other forms of violence (BJS, 
1997d). 

In contrast to the NCVS, the UCR defines rape as a crime that requires 
force and is limited to female victims. In recent years, redesign of the UCR has 
replaced rape with two sex offense categories, one forcible the other nonforcible. 
Implementation of the UCR redesign is currently in process, however, and the 
new data are not yet available. 

Differences in how the UCR and NCVS programs define rape and the rede¬ 
sign of the NCVS make national trends in rape difficult to ascertain. UCR data 
indicate, for example, that rape rates increased 50% between 1973 and 1996 (BJS, 
1997d, e). However, NCVS data indicate that rape victimizations for this same 
time period declined by nearly 65% (BJS, 1997c, e). The NCVS and UCR both 
indicate a downward trend in rape between 1993 and 1996, but the decline re¬ 
ported by the NCVS is 3.5 times greater than that reported by the UCR, and this 
difference is not offset by an increase in sexual assault victim reports following 
the redesign of the NCVS. Despite divergent trends in rape, with only NCVS 
figures declining over the long term and with NCVS rates declining more rapidly 
than UCR rates over the past few years, NCVS rape victimization rates remain 
almost three times higher than the comparable UCR figures (BJS 1997a, e). The 
message is clear: proceed with caution when interpreting trends in rape data. 

Precautions aside, the NCVS and to a lesser extent the UCR contain a 
wealth of information about rape and other sexual assaults. Most alarmingly, 
NCVS data indicate that the majority of rapes and sexual assaults are never re- 



24 


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ported to the police (BJS, 1997e). Only about 35% of rape victims report their 
attacks to the police; this number slips to below 20% in cases of attempted rape. 
Victims of rape fail to report to the police for reasons that include shame, embar¬ 
rassment, and fear of reprisal, and because of the highly personal nature of the 
harm done (Feldman-Summers and Ashworth, 1981). Victims also do not report 
to the police because they consider rape a private matter. According to NCVS 
data, victims know their attackers in approximately 80% of completed rapes (BJS, 
1997e). 

Who faces the greatest risk of being a rape victim? Data indicate that female 
rape and sexual assault victims outnumber male victims by about 16:1 (BJS, 
1997e). Victimization rates are highest among 16-19-year-olds, among blacks, 
and among persons who reside in households with low family incomes. Victims 
are more likely to be single than married, and in general are likely to be young. 
Girls 12-15 face a greater risk of rape or sexual assault than women 25-34. 

Where are rapes most likely to occur? Victims of rape and sexual assault 
are twice as likely to live in urban areas than in suburban or rural areas (BJS, 
1997e). They are more likely to live in the West and Midwest then to live in 
the South. Moreover, the majority of rapes and sexual assaults occur in familiar 
surroundings. One-third are reported to occur in the respondent’s own home, an 
additional 20% at, in, or near a friend’s, relative’s, or neighbor’s home. Finally, 
nearly 90% of reported rapes involve lone offenders most of whom (approxi¬ 
mately 80%) used no weapon. Most victims resist their attackers: approximately 
80% report taking self-protective measures. This figure is higher in attacks that 
involve nonstrangers. 


E. Robbery 

The UCR and NCVS define robbery similarly as the taking of property from a 
person by force or threat of force. Robbery is considered a violent crime because 
it involves direct personal contact between a victim and an offender. 

UCR data indicate that robbery rates rose dramatically in the 1960s and 
early 1970s and then leveled off before peaking in the late 1980s and early 1990s 
(BJS, 1997c). UCR robbery rates have fallen dramatically in recent years; 26% 
between 1991 and 1996. This pattern is substantiated by NCVS data, which report 
a similar decline. 

One explanation for the decline in robbery may be found in recent trends 
in drug use. Although robbery rates have fallen in recent years, so has the use 
of crack cocaine (Golub and Johnson, 1997). Among persons arrested for violent 
crime, those arrested for robbery are most likely to be cocaine users (National 
Institute of Justice, 1997). Although cocaine use does not necessarily cause rob¬ 
bery, the relationship between the two is suggestive. 



Trends in Crime 


25 


The NCVS asks victims of violent crime to identify the perceived race of 
their attackers. For the crime of robbery only, victims report that over half of 
their offenders are black: 51% in lone offender attacks and 56% in multiple 
offender attacks in 1994 (BJS, 1997c). This finding is corroborated by UCR 
arrest data and by court conviction data. Curious, however, is that although 
NCVS data suggest that blacks make up a slight majority of robbery offenders. 
71% of robbery defendants who were convicted in state courts in 1994 were 
black (BJS, 1997f). 

One possible explanation for this discrepancy—that robberies committed 
by black offenders are more likely to involve harm to victims and therefore are 
more likely to be prosecuted vigorously—is unsupported by the facts. Returning 
to the 1994 NCVS data, robbery victims report that only 44% of completed rob¬ 
beries with injury involved black offenders (BJS, 1997c). A substantially higher 
percentage of black offenders (60%) completed their robberies without injury. 
Is this evidence of racial discrimination in the legal process? Possibly, but not 
necessarily. A large body of literature exists that examines racial disparities in 
court outcomes, a review of which is beyond the scope or purpose of this chapter. 
The issue is raised here merely to illustrate the kinds of questions students of 
public policy may address using available crime and justice data. 

According to NCVS data, approximately 65% of completed robberies are 
reported to the police (BJS, 1997e). True of all violent crimes, victims are most 
likely to report to the police if an injury is sustained and least likely to report to 
the police if the crime is not completed and no injury is involved. Of completed 
robberies, most involve the use of weapons with guns outnumbering knives by 
about 3:1. Persons who reside in households with low family incomes are likely 
targets of robbery along with males, 16-19-year-olds, and African-Americans. 
Approximately 75% of robbery victims report not knowing their assailants. 

NCVS data also reveal where robberies are most likely to be committed. 
Victims report that approximately 40% of robberies occur on the street beyond the 
vicinity of their home neighborhoods (BJS, 1997e). Parking lots and commercial 
buildings are also common sites for robbery. Only about 15% of robberies occur 
in the victim’s own home. Robbery victimization rates are highest in the western 
US and lowest in the South. Of all the violent crimes, robbery is the most uniquely 
urban: victims are three to four times more likely to reside in cities than in subur¬ 
ban or rural areas. 

F. Assault 

The NCVS reported a total of 9.1 million assaults in 1996 (BJS, 1997e). That is 
more than one assault for every 30 Americans. The crime of simple assault— 
attacks that inflict less than serious bodily harm and do not involve the use of a 
weapon—accounted for just under 75% of all assaults. Aggravated assault, or 



26 


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attacks intended to inflict serious bodily harm, accounted for the remaining 25%. 
A large majority of these crimes, well over 90%, involved the use of a weapon. 
Firearms outnumbered the use of knives by about 2:1. According to the NCVS, 
the crimes of simple and aggravated assault combined to account for 20% of the 
total crime and 85% of the violent crime committed in 1996. Placed in perspec¬ 
tive, the average American in any given year is twice as likely to be the victim 
of aggravated assault and six times more likely to be the victim of simple assault 
than to have a car stolen. 

According to NCVS data, youth between the ages of 12 and 15 face the 
highest risk of simple assault (BJS, 1997e). Victimization rates for aggravated 
assault are highest among 16-19-year-olds. Although the risk of simple assault 
is slightly lower for blacks than for whites, the risk of aggravated assault is 50% 
higher for blacks. Much of this difference is accounted for by gender. Black 
women are nearly twice as likely as white women to be the victim of aggravated 
assault. 

Overall, victims are most likely to report that their attackers are white, 
male, and over 21 years of age (BJS, 1997e). Simple assaults are reported to 
occur with equal frequency inside schools, on the street, and in the respondent’s 
own home. In contrast, aggravated assaults tend to occur on public streets, outside 
the vicinity of the victim’s neighborhood. Approximately one-half of all assaults 
involve strangers to the victim. Recently the UCR program has begun collecting 
statistics on bias-motivated or hate crimes. Of the 10,706 hate crimes reported 
in 1996, 30% involved simple or aggravated assault (FBI, 1997b). Blacks were 
the most frequent target of these assaults, followed by gay men, Hispanics, lesbi¬ 
ans, and Jews. 


G. Theft 

If I stop you on the street, brandish a weapon, and force you to give me your 
backpack, I have committed a robbery. If I lift your backpack from a library 
cubicle while you are searching the stacks for a book, I have committed a theft. 
Theft—the taking of property not in the immediate possession of its owner— 
knows more victims than any other crime. The sheer volume of theft is truly 
staggering. According to the NCVS, nearly 21 million completed thefts occurred 
in 1996 (BJS, 1997e). Placed in perspective, that is 2 reported thefts for every 
10 American households in the course of a single year. As remarkable as this 
figure is, it actually represents a 50% decline from the mid-to late 1970s when 
the NCVS recorded over 4 thefts for every 10 households (BJS, 1997c). 

Whether or not thefts are reported to the police depends largely on the 
value of the property taken. In 1996, for instance, approximately 20% of all thefts 
involved property valued at over $250 (BJS, 1997e). Nearly 60% of these of- 



Trends in Crime 


27 


fenses were reported to the police. By contrast, over 35% of thefts involved prop¬ 
erty valued at under $50, but fewer than 15% of these were reported to the police. 

This pattern, which has remained steady over time, sheds some light on a 
discrepancy in NCVS and UCR data trends for theft. While NCVS data indicate 
that rates of theft have fallen sharply since the mid-1970s, UCR data indicate no 
significant changes (BJS, 1997c). The implication is that, over time, an increasing 
proportion of thefts has involved the taking of property of substantial value. Theft 
may be less prevalent today than in the past, but it is no less serious a problem. 

Second to arson, theft is the young person's crime of choice. Youth between 
the ages of 13 and 14 accounted for over 104,000 theft arrests in 1996 (FBI, 
1997a). Persons under 18, regarded as juveniles in most states, accounted for 
one-third of all theft arrests that year. One can only imagine how many more 
thefts were committed by young people who, because of their age, were diverted 
from the justice system prior to arrest. Theft victims are only somewhat more 
likely to reside in black than in white households and in moderate- to high-income 
compared to low-income households. Both the NCVS and UCR report that theft 
rates in metropolitan areas are no higher than they are in midsized cities (BJS, 
1997e; FBI, 1997a). Theft touches the lives of more people with less discrimina¬ 
tion than any other crime. 


IV. ACCESSING CRIME AND JUSTICE DATA 

UCR and NCVS published reports are available at most university libraries and 
at any library that is a repository for government documents. In addition, many 
excellent sources of crime and justice data have not been referred to in this chap¬ 
ter. For example, the US Department of Justice Bureau of Justice Statistics (BJS) 
collects and compiles data for several annual reports in addition to the NCVS, 
and a variety of shorter bulletins published throughout the year. Data on the 
processing of federal law violators is published annually in The Compendium of 
Federal Justice Statistics. Data on offenders incarcerated in local jails, state facil¬ 
ities, and federal prisons is published in Correctional Populations in the United 
States. For Internet users, the BJS website at http://www.ojp.usdoj.gov/bjs/ con¬ 
tains online access to BJS crime and justice data, publications and press releases 
as well as a link to the National Archive of Criminal Justice Data. 

In addition to the UCR, the FBI publishes an annual report entitled Terror¬ 
ism in the United States. FBI data, including the UCR, may be accessed online 
at the FBI website, http://www.fbi.gov. From here, users can link to the FBI 
press release page for the latest analysis of UCR data. The National Institute of 
Justice publishes data on drug use among adult and juvenile arrestees in its Drug 
Use Forecasting Annual Report. Additional data on drug use are collected by 
the US Department of Health and Human Services. The National Household 



28 


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Survey on Drug Abuse reports detailed information on patterns of drug use among 
American youth and adults. The Drug Abuse Warning Network reports on drug- 
related emergency room hospital visits. In addition to the Gallup Poll cited earlier 
in this chapter, American attitudes about crime, law enforcement, and related 
justice issues are surveyed by the Roper Center for Public Opinion Research as 
part of The General Social Survey. Finally, an annual compendium compiled by 
BJS under the title Sourcebook of Criminal Justice Statistics is the single most 
complete source of crime and justice data. The Sourcebook may be accessed 
online at http://www.albany.edu/sourcebook. 


REFERENCES 

Black, D. (1970). Production of crime rates, Am. Sociol. Rev. 35: 733. 

Bureau of Justice Statistics. (1993). Using NIBRS data to analyze violent crime: National 
incident-based reporting system, U.S. Department of Justice, Washington, D.C. 

Bureau of Justice Statistics. (1995). The nation’s two crime measures, U.S. Department 
of Justice, Washington, D.C. 

Bureau of Justice Statistics. (1997a). Criminal victimization 1996, U.S. Department of 
Justice, Washington, D.C. 

Bureau of Justice Statistics. (1997b). The effects of the redesign on victimization esti¬ 
mates, U.S. Department of Justice, Washington, D.C. 

Bureau of Justice Statistics. (1997c). Sourcebook of Criminal Justice Statistics, 1996, U.S. 
Department of Justice, Washington, D.C. 

Bureau of Justice Statistics. (1997d). Criminal victimization, 1973-95, U.S. Department 
of Justice, Washington, D.C. 

Bureau of Justice Statistics. (1997e). Criminal Victimization in the United States, 1996, 
U.S. Department of Justice, Washington, D.C. 

Bureau of Justice Statistics. (1997f). Felony sentences in state courts, U.S. Department 
of Justice, Washington, D.C. 

Bureau of Justice Statistics. (1998). Violence by intimates, U.S. Department of Justice, 
Washington, D.C. 

Federal Bureau of Investigation. (1998). Crime in the United States, 1997, vol. 5. Depart¬ 
ment of Justice, Washington, D.C. 

Federal Bureau of Investigation. (1997a). Crime in the United States, 1996, U.S. Depart¬ 
ment of Justice, Washington, D.C. 

Federal Bureau of Investigation. (1997b). Hate Crime Statistics, 1996, U.S. Department 
of Justice, Washington, D.C. 

Feldman-Summers, S., and Ashworth, C. D. (1981). Factors related to intentions to report 
rape, J. Social Issues 37: 53. 

Ferdinand, T. (1970). Demographic shifts and criminality. Br. J. Criminol. 10: 169. 

Fox, J. A. (1996). Trends in juvenile violence: A report to the U.S. Attorney General on 
current and future rates of juvenile offending, U.S. Department of Justice, Washing¬ 
ton, D.C. 



Trends in Crime 


29 


Gallup, G. Jr. (1994-1997). The Sourcebook of Criminal Justice Statistics 1996, K. Magu¬ 
ire and A. L. Pastore, eds., U.S. Department of Justice Bureau of Justice Statistics, 
U.S.G.P.O., Washington, D.C. 

Gallup, G. Jr. (1997). The Gallup Poll Monthly, No. 386, The Gallup Poll, Princeton, NJ. 

Golub, A. L., and Johnson, B. D. (1997). Crack’s decline: Some surprises across U.S. 
cities. National Institute of Justice Research in Brief, U.S. Department of Justice, 
Washington, D.C. 

Hindelang, M. (1981). Variations in sex-race-age specific incidence rates of offending. 
Am. Sociol. Rev. 46: 461. 

Kappeler, V.E., Blumberg, M., and Potter, G. W. (1993). The Mythology of Crime and 
Criminal Justice, Waveland, Prospect Heights, IL. 

Kenney, D. J. (1988). Crime, Fear, and the New York City Subways, Praeger, NY. 

Lacayo, R. (1996). Law and order. Time, January 15, 1996. 

Levitt. S. D. (1999). The limited role of changing age structure in explaining aggregate 
crime rates, Criminology, 37: 581. 

President’s Commission on Law Enforcement and the Administration of Justice. (1967). 
Crime and Its Impact—An Assessment, U.S.G.P.O., Washington, D.C. 

Seidman, D, and Couzens, M. (1974). Getting the crime rate down: Political pressure and 
crime reporting, Law Soc. Rev. 8: 457. 

Senna, J. J.. and Siegel, L. J. (1996). Introduction to Criminal Justice, West, Minneapolis. 

Silberman, C. E. (1978). Criminal Violence, Criminal Justice, Vintage Books, New York. 

Singer, S. I. (1978). A comment on alleged overreporting. Criminology 16: 99. 

Sparks, R. (1981). Surveys of victimization: An optimistic assessment, Crime and Justice: 
An Annual Review of Research Volume 3, M. Tonry and N. Morris, eds.. University 
of Chicago Press, Chicago, pp. 1 -60. 

Steffensmeier, D., and Harar, M. D. (1991). Did crime rise or fall during the Reagan 
presidency? The effects of an ‘aging’ population on the nation’s crime rate, J. Res. 
Crime Delinquency, 28: 33. 

Walker, S. (1998). Sense and Nonsense About Crime and Drugs, Wadsworth, Belmont, 
CA. 

Wilson, J. Q. (1994). What to do about crime? Commentary 98: 34. 



This Page I nbentionally Left Blank 



3 

A History of Criminological 
Thought: Explanations for Crime 
and Delinquency 

Barbara Sims 

Penn State University — Harrisburg, Middletown, Pennsylvania 


There is a story sometimes used in either a criminology or theories of crime and 
delinquency class as an “icebreaker.” The purpose of the story is to get students 
thinking about criminal behavior and culpability, or, more specifically, to get 
them to explore the possible causes of criminal behavior. 

In the story, a jealous Baron warned his wife that while he went to visit 
his outlying districts she had to stay within the castle walls and that to venture 
outside the walls would mean severe punishment for her. As the days passed, 
the young woman grew lonely, and decided to visit her lover who lived in the 
country. Because the castle was built on an island surrounded by a fast-flowing 
river, the only way to get out of the castle was to cross over a drawbridge. The 
Baroness ordered her servants to let down the drawbridge so she could cross, 
convinced that her husband would not return before dawn. She enjoyed the com¬ 
pany of her lover for many hours and at first light made her journey back to the 
drawbridge. 

When the Baroness reached the drawbridge, she found it closed and a mad¬ 
man wildly waving a long knife. ‘ ‘Do not attempt to cross this bridge, Baroness, 
or I will kill you,” the madman exclaimed. Fearing for her life, the Baroness 
returned to her lover for help, but he refused, saying that their relationship was 
not a romantic one. She sought out the help of a boatman who agreed to take 
her over but only if she could pay him 5 marks. “I have no money,” she cried 
out, “and if you do not take me across my life is over!” The boatman simply 
laughed at her. In desperation, the Baroness turned to a friend for help. The friend, 
however, scolded her for disobeying her husband, and refused to help. By this 


31 



32 


Sims 


time, the sun was getting higher in the sky, and the Baroness knew she must risk 
facing the madman at the drawbridge. She returned to the bridge and, alas, was 
slain by the madman. 

At the end of the story, students are asked, “Who is responsible for this 
young woman’s death?” Inevitably, the most obvious response is the one most 
often given: the madman. Yet, there are those students who speak up and ask 
the question, “But what about the Baroness herself? She knew the penalty for 
leaving the castle!” Or, “And what about the lover who refused to help her when 
she needed him?” Then there are those who blame the boatman, friend, or the 
Baron for making his wife so fear him that she would risk losing her life rather 
than face him in the morning. A lively discussion usually follows in which all 
of these possibilities are explored. 

The students get the point: trying to sort out one singular cause of criminal 
behavior is a most difficult task. No theorist today would stake an academic 
reputation on one single variable as the cause of crime, nor would the general 
public if poll data are correct. In a national telephone survey of US households 
conducted in the summer of 1996, citizens were asked to respond to a series of 
questions as to their attitudes toward crime causation (Sims, 1997). 

The results were clear: Americans do not think “one way” about crime 
and its causes. They were just as likely to believe that crime is the product of one’s 
free will as that crime is the result of the poverty, racism, and social injustice that 
still exist in American society. This way of thinking about crime and causation 
is not unlike that body of work referred to as criminological thought. Theorists, 
like the public, do not think one way about crime and what causes it. 

The purpose of this chapter is to introduce the reader to a condensed version 
of over 200 years of criminological thought, beginning with Cesare Beccaria’s 
On Crimes and Punishment (1764) and ending with the work of several modern- 
day theorists. Further, an argument will be made that theory should play a critical 
role in the criminal justice policy arena, and that policies based on a hunch, or 
that are little more than “knee-jerk” reactions to crime, are not at all on a sound 
foundation. 


I. BECCARIA AND CLASSICAL CRIMINOLOGY 

Cesare Beccaria, an 18th century Italian philosopher, in a small treatise just under 
100 pages, provided the foundation for the current-day criminal justice system. 
Beccaria was reacting to the assumption of guilt until proven innocent, the inquis¬ 
itorial system of justice, the use of torture as a way of getting an alleged criminal 
to confess, and the use of ex post facto laws. In 18th century Europe there were 
no written laws, and local judges were free to make them up as they went along. 
Beccaria, in On Crimes and Punishment, written in 1764, argued for the humane 



History of Criminological Thought 


33 


treatment of people accused of a crime, and lashed out against torture by the 
state. He believed that the intent of punishment is to instill fear in others: a belief 
that serves as the foundation for modem deterrence theory. 

Beccaria believed in the notion of “just desserts,” that the punishment 
should fit the crime, and that it is inappropriate for the judicial branch to decide 
what punishment best fits what crime. Rather, Beccaria argued that the legislative 
branch, as duly elected by the people, is vested with the authority to enact laws 
against criminal behavior and that those laws should be clearly written such that 
the average person will not have to guess at their meaning. In addition, Beccaria 
argued for swift and certain punishment: 

I have said that the promptness of punishments is more useful because when 
the length of time that passes between the punishment and the misdeed is less, 
so much the stronger and more lasting in the human mind is the association 
of these two ideas, crime and punishment; they then come insensibly to be 
considered, one as the cause, the other as the necessary inevitable effect (Bec¬ 
caria, 1963:6). 

On certainty of punishment, Beccaria believed that if individuals knew that 
punishment was certain, even if that punishment was mild or moderate in nature, 
they would be more likely to be deterred than by punishment that was more 
severe but was believed less likely ever to occur. With regard to the proportion 
between crimes and punishment, Beccaria wrote: 

Given the necessity of human association, given the pacts that result from 
the the very opposition of private interests, a scale of disorders is distinguish¬ 
able, the first grade consisting of those that are immediately destructive of 
society, and the last, of those that do the least possible injustice to its individ¬ 
ual members (1963:64). 

Murder, for example, injures society much more than check forgery, and, 
as such, individuals who commit murder should suffer a harsher punishment than 
those who steal from others through forgery. If the punishment for murder and 
forgery is the same, what, asked Beccaria, would deter certain individuals from 
committing the greater of the two crimes? 

It is to the common interest not only that crimes not be committed, but also 
that they be less frequent in proportion to the harm they cause society. There¬ 
fore, the obstacles that deter men from committing crimes should be stronger 
in proportion as they are contrary to the public good, and as the inducements 
to commit them are stronger (Beccaria, 1963:62). 

Beccaria’s work greatly influenced the writers of the Enlightenment as well 
as certain world leaders such as Catherine the Great of Russia, who summoned 
Beccaria to her court to oversee reforms in her country. Beccaria has been attrib¬ 
uted with expelling torture from Europe and early America, and with the imple- 



34 


Sims 


mentation of a more humane criminal justice system throughout the world (Phil- 
lipson, 1970). One would be hard pressed not to recognize the ideas of Beccaria in 
today’s criminal justice system as well as many contemporary theories of crime. 

A. The Legacy of Beccaria 

In the modem American criminal justice system, persons accused of crimes are 
presumed innocent until proven guilty, and are charged under a system of laws 
enacted by state legislatures and the US Congress. The laws under which we live 
are written in such as a way as not to appear vague or unclear. When some 
behavior is deemed illegal by legislative bodies, the punishment for that behavior 
is made part of the legal language of the new statute. Judges may have some room 
to maneuver when faced with an offender, but only within certain guidelines. 

The writers of the US Constitution, reacting to their own experience with 
the British Crown, included certain rights for all American citizens within the 
Bill of Rights, which form the first 10 amendments to the Constitution. Among 
those rights are the right to a speedy trial by one’s peers, the right to confront 
one’s accusers, and the right to be free from excessive punishment. The ideas of 
Beccaria are woven throughout the Bill of Rights as well as the body of the 
Constitution. 

In our adversarial system of justice, we would find it preposterous to think 
that individuals hauled before the court would have to prove themselves innocent, 
as opposed to government having the responsibility to prove its case against of¬ 
fenders, or to think that judges could make up law as they pleased. Furthermore, 
we would be shocked at the sight of state inquisitors torturing people accused 
of a crime as a means to obtain a confession from them. We all hold to the notion 
of “just” punishment that is swift and certain. All of these notions are grounded 
firmly in Beccaria’s writings over 200 years ago. 

B. Beccaria’s Contribution to Criminological Theory 

As stated above, Beccaria’s argument that would-be offenders could be deterred 
by the certainty of punishment proportional to the criminal behavior is the founda¬ 
tion for modem deterrence theory. The major concepts of deterrence theory are 
certainty, severity, and celerity, all of which are taken from the philosophies of 
Beccaria. 

The major premise of deterrence theory is that people, according to their 
own free will, weigh the possible consequences of their actions, be it pleasure 
or pain, a notion that is also found in Jeremy Bentham’s concept of utilitarianism, 
and, in so doing, make rational choices about whether to commit certain acts. 

We often relate the goal of punishment as retribution, often referred to as 
“just desserts” or “an eye for an eye,” to Beccaria’s notion of severity. Beccaria 



History of Criminological Thought 


35 


however, along with Bentham, believed that in order to deter, the punishment 
for a crime must be just severe enough to overcome any gains and/or pleasure 
that might be obtained by committing the crime. Any more, they argued, would 
not be “just,” nor would it deter. 

Certainty of punishment, which was equally important for Beccaria, means 
that individuals, in their rational calculations, must know that punishment will 
occur if they are caught, and celerity means the swiftness with which that punish¬ 
ment follows the criminal act. 

Rational choice theory, developed by Cornish and Clark (1986), has its 
roots in the early work of Beccaria and classical theory. The major premise of 
rational choice theory is that individuals, armed with their own free will and the 
ability to reason, make conscious choices about their behavior, especially when 
that behavior is criminal. If society can, through its actions and examples, send 
a clear message that those who break the law will surely be punished, this mes¬ 
sage will be a factor in a would-be criminal’s decision process and will, in fact, 
deter criminal behavior. Appropriate punishment, for rational choice proponents, 
becomes crucial and the overall goal of punishment should be to deter both the 
individual and future offenders. 

To summarize, classical criminology begins with the work of Beccaria and 
the notion of free will. The overall focus of the criminal justice system is the act 
itself, not the individual. Crime is the result of an individual choice, not forces 
external to the individual. Through a process of reasoning, people weigh the 
consequences of their actions: they consider the costs versus the benefits. If, 
within this process, individuals view the costs as not worth any possible gains, 
then crime is less likely to occur. 


II. A PARADIGM SHIFT: BIOLOGICAL EXPLANATIONS 
FOR CRIMINAL BEHAVIOR AND POSITIVISM 

In the late 19th century, there was a change in the way society thought about 
crime causation. Focus was taken off the act of committing a crime and put onto 
the possibility of criminal acts being the result of forces either external or internal 
to the individual. 

In The Criminal Man (1876), Cesare Lombroso proposed an argument that 
crime is the result of inborn abnormalities: that people are bom predispositioned 
to commit crimes. Criminals, argued Lombroso, are fundamentally different, both 
physically and mentally, from law-abiding citizens. Lombroso used the term ata¬ 
vism to describe criminals as people who were actually throwbacks in the evolu¬ 
tionary chain. He reported findings from his studies that led him to conclude that 
criminals exhibited certain physical characteristics such as large jaws and noses 
and an inability to know the difference between right and wrong. 



36 


Sims 


Lombroso’s work was challenged by Charles Goring in his 1913 study that 
compared prison inmates with university students, teachers, soldiers, and hospital 
patients. In his study. Goring found no differences between inmates and nonin¬ 
mates with regard to the physical characteristics identified by Lombroso as being 
related to criminal behavior. Although Goring had succeeded in refuting 
Lombroso’s notion of atavism, he still thought that he had found instead proof 
that there were statistically significant differences between criminals and non¬ 
criminals in stature and weight. He also found that criminals possessed a defective 
intelligence and were morally defective. 

Much of the work of these early biological theorists has since been dis¬ 
proved and called to task for ignoring the role of the environment in criminal 
behavior. Furthermore, much of the work of Lombroso, Goring, and others was 
seen as discriminatory in nature. For almost four decades, biological theory re¬ 
ceived very little attention, and for that very reason. 

It did, however, experience a rebirth of sorts in the 1970s in the work of 
modem proponents of biological theory. There have been, for example, studies 
that examine the theory of the XYY “super-male” criminal (Akers, 1996:41), 
a theory that suggests that some males have an extra Y chromosome that puts 
them at risk for becoming violent. In the same vein, Booth and Osgood (1993) 
hypothesized a connection between testosterone in males and antisocial and vio¬ 
lent behavior. 

Unlike their predecessors, modern biological theorists do not ignore social 
and psychological forces, and their methodological techniques far surpass those 
of Lombroso and Goring. Although most criminologists would not, based on the 
scientific evidence presently available to them, support a Lombrosian notion that 
criminals are bom that way, neither would they rule out the possibility that some¬ 
how the environment interacts with biological predispositions in a way that, under 
certain circumstances, could result in crime. 

A. Positivist Criminology 

Positivist criminology is used to describe a shift away from an assumption that 
society should focus on free will and the criminal act itself, as outlined by classi¬ 
cal criminology, toward a focus on the individual committing the act. People who 
studied the cause of criminal behavior, including Lombroso and early biological 
theorists, began to examine the possibility of rehabilitating criminals through the 
identification and treatment of criminals and crime causation. Although 
Lombroso’s work has been questioned regarding its methodological rigor and 
scientific authenticity, it still is seen as one of the contributing factors to the 
beginning of the scientific method of criminology. 

Under classical criminology, society focused solely on the criminal act 
since all individuals were considered to be capable of acting according to their 



History of Criminological Thought 


37 


own free will. Since humans, then, in their capacity as reasoning beings, freely 
chose to commit a criminal act, the only way to prevent further criminal acts 
was through appropriate punishment that was swift, certain, and appropriate. 
Such action, it was believed, would deter future offending, either through specific 
or general deterrence. 

There was no notion of treating criminals as a means to “correct” their 
behavior under classical criminology as is found under positivist criminology. 
The birth of positivist criminology meant that society took the focus off the indi¬ 
vidual act of the crime itself and on the individual committing it. As such, it 
was believed that there could be forces either internal to the individual, such as 
biological or psychological forces, or external to the individual, such as poverty, 
delinquent peers, bad parents, and so on, that could “push” individuals toward 
a criminal lifestyle. Through science, positivist criminology began to examine 
what those forces might be and, in turn, what sort of policy implications might 
flow from the correct identification of relationships between those forces and 
criminal behavior. 


III. PSYCHOLOGICAL EXPLANATIONS FOR CRIMINAL 
BEHAVIOR 

Just as biological theorists find explanations for criminal behavior in forces 
that are internal to the individual yet beyond that individual’s control, so too 
do psychological theorists. The major premise of psychological theory is that 
“people are shaped by the developmental processes occurring during their for¬ 
mative years in ways that predispose them to crime” (Einstadter and Henry, 
1995:99). 

The young person who grows up able to function within the norms of soci¬ 
ety is said to have experienced adequate socialization. On the other hand, the 
child who exhibits an inability to function well within society may be the product 
of inadequate socialization. There could be experiences within the child’s life that 
resulted in disturbed personalities, which, in turn, could result in misbehavior. 
Inadequate socialization could come at the hands of parents who, themselves, 
suffered from traumatizing experiences within the family unit or from the 
environment itself, (i.e., poverty, unemployment, neighborhood disarray, etc.) 
(Einstadter and Henry, 1996). 

A. Freud’s Psychoanalytic Theory: The Id, the Ego, 
and the Superego 

According to Scroggs (1985), Sigmund Freud attempted to find answers to all 
questions about human behavior. In doing so, Freud argued passionately against 



38 


Sims 


the classical school of criminology’s rational model of free will and choice. In¬ 
stead, argued Freud (1962), humans will seek to maximize their pleasure (the id) 
unless the conscious (the ego) overrides such action. Thus for Freud, the id is 
the nonrational force at work in human behavior because it is the seat of basic 
and primitive human desires, instincts, needs, and drives (Martin et al., 1990). 
The id only knows that it wants and acts on the pleasure principle. It is, for all 
intents and purposes, amoral. The ego, on the other hand, operates with the out¬ 
side world and is able to form some understanding of societal expectations and 
notions of right and wrong. 

In addition to the id and the ego, the superego develops in humans and 
operates as a further check on the id or unbridled search for satisfaction and 
pleasure. The superego, according to Freud (1962), allows individuals to feel 
guilt over wrongdoings. 

In the well-adjusted individual, the id, ego, and superego function with a 
minimal amount of conflict. In the individual who exhibits aberrant behaviors, 
such as crime, these three components of the personality are said to be in constant 
conflict. 

B. Personality Theories 

Although most personality theorists do not explicitly address the issue of crime, 
many criminological theorists have developed explanations for criminality based 
on what they have inferred from what personality theorists have to say about 
personality disorders in general (Bohm, 1997). Erikson (1950), for example, be¬ 
lieved that personality disorder is the result of a feeling of isolation and help¬ 
lessness. For these people, criminal behavior could be a way through which indi¬ 
viduals could find some security, and personality disorders are the result of an 
inadequate development of a sense of identify. Bohm (1997) suggests that crimi¬ 
nal offenders could commit certain behavior in order to gain a reputation within 
certain communities (gangs, for example) where that type of behavior is somehow 
accepted and/or glorified. 

One research team that did specifically address crime and personality is 
that of Yochelson and Samenow (1976). According to their work, criminals are 
angry people who share abnormal thinking patterns. They further argued that part 
of the abnormal thinking patterns of criminals often include feelings of superior¬ 
ity and a highly inflated self-image, and that any attack on this image can, at 
times, produce a violent response. The only appropriate response to crime, ac¬ 
cording to Yochelson and Samenow, is to change how people think. 

One of the most hotly debated issues in criminological theory is the ques¬ 
tion of whether there is a relationship between a person’s intelligent quotient 
(IQ) and crime. One of the first hurdles that has to be cleared in this debate 



History of Criminological Thought 


39 


is the notion that intelligence is inherited as opposed to being determined by 
environmental factors. Most criminological theorists have called for a closer ex¬ 
amination of the influence of situational factors on IQ. In fact, many theorists 
believe that to focus too closely on psychological theories in general runs the 
risk of missing one important fact: crime occurs in the social environment. Psy¬ 
chological theory, with its focus on the individual and problems internal to that 
individual, has a lot to say about crime but so too do the environmental factors 
in which that individual functions. 


IV. SOCIOLOGICAL EXPLANATIONS FOR 
CRIMINAL BEHAVIOR: STRUCTURE, 

SUBCULTURE, AND PROCESS 

There is a rich history of criminological thought in the field of sociology, and it 
begins with Emile Durkheim in the late 1900s. Durkheim, like Lombroso, was 
a positivist, but he looked at explanations for behavior from a social rather than 
from a biological perspective. Arguing that a person’s behavior could not be 
separated from the environment, social facts became critical for Durkheim. These 
facts included such social phenomena as culture, traditions, religion, customs, 
laws, and obligations (Martin et al., 1990). 

In The Division of Labor, written in 1883, Durkheim coined the concept 
anomie to describe a pathological state of societies undergoing rapid change. He 
argued that as societies move from a primarily agrarian state (mechanical) to a 
more industrial state (organic), the quality of life was bound to be affected ad¬ 
versely. In a time of rapid transition, Durkheim argued, society loses control over 
its members, and the result is chaos, or social confusion. He returned to the con¬ 
cept of anomie in Suicide, written in 1897, in which he looked at the role that 
social facts, most notably religion, play in the motivation to commit suicide. 
During Durkheim’s time, suicide was considered a criminal offense, and, al¬ 
though “it is no longer appropriate to think of suicide as criminal behavior, it 
is clear that the same social factors that may influence one to take his or her own 
life, may also motivate one toward other types of deviance, including some 
crimes” (Martin et al., 1990:58). 

The contribution of Durkheim to the development of criminological theory 
in the 20th century cannot be overstated. The ideas of Durkheim have been revis¬ 
ited many times in the major works since the turn of the century. In addition, 
Durkheim’s notion that social facts can be quantified, and thus provide support 
for sociologically based theories of crime, is alive and well today in criminologi¬ 
cal thought, beginning with the Chicago School of the 1920s. 



40 


Sims 


A. The Chicago School: Human Ecology and 
Social Disorganization 

Beginning in the 1920s at the University of Chicago, a group of sociologists 
begin to focus their attention on the communities of Chicago. Notable among 
this group were Robert Park and Ernest Burgess, who used the City of Chicago 
as a laboratory for studying what came to be known as human ecology. 

Early European biologists had studied the ecology of plant life and how it 
might be applied to the study of humans in particular and more generally how 
the term could be applied to the social environment (Einstadter and Henry, 1995). 
It was believed that, just as is found in the plant world, human communities 
undergo change when many different individuals come together. From a Darwin¬ 
ian perspective, only the strong will survive, with the weaker groups eventually 
being overcome by the more dominant groups. 

Park and Burgess (1925) argued that the geographical environment influ¬ 
ences individuals and that crime is one possible result of the influences of physical 
surroundings. In their research, these sociologists divided the city into concentric 
zones, with zone I consisting of the business district of the downtown area. Zone 
II was referred to as the “zone of transition,” and was immediately adjacent to 
zone I. Zone II housed the poor, unskilled, and disadvantaged citizens, living in 
dilapidated housing next to old factories. In zone III, the working class individuals 
lived, and the middle class professionals resided in zone IV. Zone V was the 
suburbs of Chicago, or the “bright-light” areas. Using these concentric circles, 
Park and Burgess sought to explain high crime rates in the “zone of transition,” 
and argued that it was something about the environment that was conducive to 
high crime rates. 

Clifford Shaw and Henry McKay (1942) built on the work of Park and 
Burgess in their development of social disorganization theory. Using the concen¬ 
tric circles model, Shaw and McKay mapped delinquency rates for Chicago over 
a 33-year period from 1900 to 1933, while profiling each district by percentage 
of residents living in poverty, high turnover of residents (mobility), and lack of 
heterogeneity (percentage of immigrants living in the districts). In addition, Shaw 
and McKay looked at other community problems such as tuberculosis, infant 
mortality, and truancy. 

Based on findings from their study, Shaw and McKay concluded that in 
areas characterized by social disorganization (neighborhoods in disarray), society 
loses control over its members. Once society loses control over its members, 
delinquency is likely to result. They reported higher delinquency rates in zone 
II, the zone of transition, and found that delinquency decreased with distance 
from the downtown area. Shaw and McKay argued further that high crime rates 
remained regardless of the cultural or ethnic groups that resided in zone II, sup- 



History of Criminological Thought 


41 


porting Park and Burgess’ earlier notion that crime is a type of place as opposed 
to a type of person phenomenon. 

B. Strain and Opportunity Theory: Frustration, Motivation, 
and Blocked Opportunities 

In 1938, Robert Merton used Durkheim’s notion of anomie in his argument that 
crime is the result of the disjunction between cultural goals and societal means. 
Merton argued that in the United States, all classes of people are taught to want 
the same things, to accumulate material goods, based on notions of success that 
cut across all social boundaries. All are taught that with a lot of hard work, the 
American Dream can be achieved. Yet, argued Merton (1938), all people are not 
given the same means through which to achieve those goals. 

This breakdown in the legitimate opportunity structure leads to anomie, or 
a sense of normlessness by which minority groups and lower-class people are 
shut out from access to legitimate ways of achieving the American Dream. Ac¬ 
cording to Akers (1997:120), “this anomic condition produces strain or pressure 
on these groups to take advantage of whatever effective means to income and 
success they can find, even if these means are illegitimate or illegal.” 

In an anomic society such as the one that Merton described, individuals 
could become frustrated over an inability to accumulate material goods. This 
frustration could, argued Merton, lead to the motivation to achieve material suc¬ 
cess by illegal means. Merton referred to these individuals as innovators , or peo¬ 
ple who accept the cultural goals that they have been taught to want but reject 
the legitimate opportunity structure, seen as blocked off from them, and, in its 
place, seek out illegitimate opportunities. 

In 1961, Cloward and Ohlin suggested that Merton’s strain theory was 
flawed in one critical way: not all individuals would find equal opportunities 
awaiting them in the illegitimate opportunity structure. In other words, it does 
not automatically follow that illegitimate opportunities are readily available to 
those individuals who are shut out from the legitimate opportunity structure. Clo¬ 
ward and Ohlin argued, instead, that only in neighborhoods where opportunities 
for illegal activity exist can individuals motivated to commit delinquency (they 
were particularly interested in the development of the juvenile youth gang) find 
opportunities to do so. 

C. The Delinquent Subculture and the Middle-Class 
Measuring Rod 

In 1955 Albert Cohen published Delinquent Boys: The Culture of the Gang , in 
which he explained how subcultures evolve in the first place. For Cohen, subcul- 



42 


Sims 


tures result when individuals attempt to conform to what is expected of them in 
the mainstream culture and that attempt goes awry. In other words, when individ¬ 
uals fail to gain acceptance and recognition in mainstream culture, they seek out 
other solutions or alternate routes for respect. A subculture, for Cohen, is merely 
similarly situated individuals joining together for a common goal: respect of and 
acceptance by their peers. 

Using his general theory of how and why subcultures evolve and persist, 
Cohen (1955) explored the rise of the delinquent gang among working-class cor¬ 
ner boys. Working-class youth, when coming in contact with the middle-class 
culture (primarily in the school setting), find it difficult to live up to the middle 
class measuring rod (measures of success such as school achievement), and suffer 
from status deprivation, defined as a lack of both status and self-esteem. Reacting 
to this loss of status and respect, the working-class youth may seek out other 
youths who are experiencing the same thing, thus leading to the formation of the 
youth gang. In the delinquent gang, status is measured much differently from the 
middle-class measuring rod. Whereas middle-class youth are rewarded for drive 
and ambition, individual responsibility, and success in the classroom, lower-class 
youth are rewarded for such things as “living for the moment,” since long-range 
planning seems futile (Cohen, 1955:90). 

Cohen saw the delinquent subculture as engaging primarily in nonutilitarian 
criminal activity, or activity that is done just for the fun of it and not meant to 
produce any real monetary profits. For these youth, status in the eyes of other 
delinquent youth is what is important; that status can be gained through petty 
thefts that do not have to produce any economic gain. 

D. Social Process Theories: Social Control and Learning 

Whereas social disorganization and strain theories focus on societal structure 
and the role that the social environment plays in the production of crime and 
delinquency, social process theories “focus on social-psychological processes 
that develop over time in the course of social interaction' ’ (Einstadter and Henry, 
1995: 175). According to Siegel (1989), all members of society, and from all 
walks of life, have the potential to become delinquent or criminal. What separates 
the delinquent or the criminal from law-abiding members of society is variation 
in the manner in which both groups are socialized. In the socialization process, 
key factors such as family and peer influences, the education experience, and self- 
image development often dictate who will, or who will not, become delinquent or 
criminal (Siegel, 1989). 

Travis Hirschi (1969), in Causes of Delinquency , argued that theorists fo¬ 
cusing primarily on societal structure were asking the wrong question. Instead 
of the question, ‘ ‘Why do people commit crime,” he argued, we should be asking. 



History of Criminological Thought 


43 


“Why don’t more of us commit crime?” Delinquency and crime occur when 
one’s bonds to society become weak or are broken. 

Hirschi’s social bonding theory contains four major concepts: attachment, 
commitment, belief, and involvement. Attachment to others is the extent to which 
individuals have “close affectional ties to others” (Akers, 1997:86). In the words 
of Hirschi, “The essence of internalization of norms, conscience, or superego 
thus lies in the attachment of the individual to others” (1969:18). The more we 
care about the way others see us, the less likely we are to violate the norms of 
society. 

Commitment builds on an earlier notion by Toby (1957) referred to as a 
stake in conformity. This investment in conventionality would be jeopardized by 
criminal or deviant behavior, and it is this fear of that loss that keeps individuals 
from enacting such behavior (Akers, 1997). Belief, for Hirschi (1969), is the 
degree to which individuals have “bought into” the system. In other words, 
individuals must believe in the value of a system of laws and norms and that 
society is just and morally justified in its rules and regulations. If, through interac¬ 
tion with others, a strong belief in the system does not develop or somehow 
becomes broken over time, then delinquency could result. 

The final bond in Hirschi’s theory is involvement. This comes from the 
old adage, “Idle hands are the devil’s workshop.” The more individuals are 
involved in daily activities, especially young people, the less time they will have 
to engage in law-breaking behavior. Along with that, the more we are involved 
with parents, teachers, coaches, religious leaders, and other mentors, the stronger 
stake in conformity becomes. 

Social bonding theory builds on a rich history of social control theory by 
such theorists as Reiss (1951) and Nye (1958), their notions of internal and exter¬ 
nal controls (both personal and individual), and Reckless’s (1961) containment 
theory (pushes and pulls toward delinquency). However, it is Hirschi’s social 
bonding theory that has come to ‘ ‘occupy a central place in criminological the¬ 
ory” (Akers, 1997:84). 

Another prominent social process theory is social learning theory, first de¬ 
veloped in 1966 by Burgess and Akers. Borrowing from Edwin Sutherland’s 
1947 differential association theory, Burgess and Akers formulated a theory that 
combined Sutherland’s notion of “criminal behavior is learned” with the princi¬ 
ples of operant conditioning from the field of behavioral psychology. Individuals’ 
actions are shaped by rewards and punishments, and crime can occur when good 
behavior goes unrewarded or when bad behavior receives some sort of positive 
reinforcement. 

In 1973, Akers further developed the work he had begun with Burgess and 
produced what has come to be known as social learning theory. Akers’s social 
learning theory focuses on four major concepts: differential association, defini- 



44 


Sims 


tions, differential reinforcement, and imitation. Basically, social learning theory 
says that crime is learned just like any other behavior. 

The principal behavioral effects come from interaction in or under the influ¬ 
ence of those groups with which one is in differential association and which 
control sources and patterns of reinforcement, provide normative definitions, 
and expose one to behavioral models. Deviant behavior can be expected to 
the extent that it has been differentially reinforced over alternative behavior 
(conforming or other deviant behavior) (Akers, 1985:57-58). 

Akers has argued that social learning is complex process in which learned 
definitions of crime, in interaction with significant others, can lead individuals 
to the point of committing a crime. If those actions are met with positive rein¬ 
forcement, or if the behavior does not produce negative reactions from significant 
others, criminal behavior could become a recurring event. 

It should be noted that social process explanations for crime and delin¬ 
quency are not in direct contradiction with structural explanations for crime and 
delinquency. Process theories recognize the role that one’s community plays in 
the socialization process. Where individuals are located in the class structure, for 
example, often dictates how, under what conditions, and in what form social 
bonding or social learning will take place. 

One would be hard pressed to argue that institutions such as the family or 
school have little to do with whether an individual’s bond to society will become 
weak or broken, or with the production of an environment in which criminal 
behavior is not accepted, thereby reducing one’s ability to achieve positive rein¬ 
forcement for such behavior. 


V. ALTERNATIVE EXPLANATIONS FOR CRIME: 

LABELING, CONFLICT, AND CRITICAL THEORIES 

Just as Hirschi and early social control theorists refocused criminological thought 
from why people commit crime to why more people do not commit crime, theo¬ 
rists in the 1950s and 1960s begin to ask a different sort of question. These 
criminologists began to look at the role that the criminal justice system itself 
plays in the production of crime. Instead of focusing on the characteristics of the 
criminal or societal structure, these criminologists focused on the extent to which 
individuals become criminals based on what people with power do. 

A. Labeling Theory 

Labeling theory states that people become criminal because they are reacting to 
the label “criminal” (or delinquent) bestowed upon them, either formally (crimi- 



History of Criminological Thought 


45 


nal justice system, teachers, etc.) or informally (family, friends). Howard Becker 
(1963:9) wrote that: 

Deviance is not a quality of the act the person commits, but rather a conse¬ 
quence of the application by others of rules and sanctions to an offender. 

The deviant is one to whom that label has successfully been applied; deviant 
behavior is behavior that people so label. 

Drawing heavily from the theory of social interactionism (Mead, 1934), 
Becker and other labeling theorists argued that individuals’ perceptions of self 
are formed through a continuous process of interaction with others. Tannenbaum 
(1938) described how young people, looking for excitement, often engage in 
behavior such as truancy or breaking windows that is annoying to adults. He 
believed, however, that this type of behavior is a normal part of growing up, and 
that it should be handled accordingly. A 4 ‘dramatization of evil’ ’ occurs when 
the young person is singled out and given negative attention by the schools, law 
enforcement, or the courts (Tannenbaum, 1938:27). From that point on, the indi¬ 
vidual has been tagged, labeled a delinquent, the result of which could be further 
delinquent and/or criminal behavior. 

Another important aspect of labeling theory is an examination of how laws 
are created. Becker (1963) argued that the moral entrepreneurs—people with the 
power and resources to enforce social rules under which the rest of society must 
live—decide what will and what will not be a crime. Thus, the primary concern 
of labeling theory is “the consequences of making and enforcing rules’’ (Adler 
et al„ 1999:195). 

B. Conflict and Critical Theory 

Two other alternative criminological theories are conflict theory and critical the¬ 
ory. In 1958, Void, wrote that society, rather than being held together by consen¬ 
sus, is always in conflict, with the more powerful groups being able to control 
the law and legal standards for behavior. Conflict theorists ask much the same 
question as labeling theorists: “Why are some acts defined as criminal while 
others are not?” According to Chambliss (1975), both the formulation and en¬ 
forcement of the law serve the interests of the more powerful groups in society. 

In the 1970s, several conflict theorists broke with their original theory and 
began to focus more on Marxist theory. Although Marx did not spend a lot of 
time writing about crime and criminal justice, critical theorists rely upon Marx’s 
notion of the capitalists’ monopoly on the means to production. Whereas conflict 
theorists see society composed of many groups constantly in conflict with each 
other, critical theorists, relying on the writings of Marx, see a system in which 
society is broken out into two very distinct groups: the capitalists and the proletar¬ 
iat (working class). The capitalists are able to use their power to pass laws and 



46 


Sims 


to control the criminal justice system for their own benefit (overlooking so-called 
“suite crimes” as opposed to the “street crimes” of the poor). Quinney (1980) 
proposed that the crimes of the working class are nothing more than crimes of 
resistance to the capitalist system, and that violent crimes are crimes committed 
by those who have themselves been brutalized by the capitalist system. 


VI. THEORETICAL DEVELOPMENT: COMPETITION, 

REFORMULATION, AND INTEGRATION 

From classical theory to critical theory, criminological thought of the past 
200 years has provided explanations for crime and delinquency. Theoretical de¬ 
velopment has evolved across time in three major ways: (a) theoretical competi¬ 
tion; (b) theoretical reformulation; and, (c) theoretical integration. 

Theoretical competition involves pitting one theory against another and 
deals primarily with empirical tests of the competing theories. According to Akers 
(1997), the empirical validity of a theory is the most important criterion for de¬ 
termining the theory’s value. That is to say, the manner in which the theory holds 
up under empirical tests will determine if the underlying logic of the theory 
should be abandoned or maintained. The social process theories, for example, 
social learning and social control, have performed well when tested. Contributing 
to that performance is the relatively lack of difficulty in operationalizing the major 
concepts of those theories. 

Critical theory, on the other hand, is difficult to measure, in part because 
there is currently no purely socialist or communist society to allow one to com¬ 
pare crime rates with those of capitalist nations. A major concept of critical the¬ 
ory, alienation, is difficult to measure, unlike concepts such as attachment, belief, 
commitment, and involvement, all of which have been measured successfully. 
Thus, some modem theorists would argue that it is time to abandon critical theory 
in favor of the social process theories, given the performance of both in the empir¬ 
ical arena. Still others argue that as long as the theory has, at its roots, a logical 
explanation for crime, it should not be abandoned. Instead, efforts should be made 
to come up with appropriate measures for its major concepts. 

Theoretical reformulation is the process of taking one theory and adding 
to it. This process was briefly described above in the section on social learning 
theory. Burgess and Akers merely expanded, or built on, Sutherland’s differential 
association theory by introducing the learning principles of operant and respon¬ 
dent conditioning from the field of behavioral psychology. Akers (1997) argues 
that the new social learning theory can more thoroughly explain delinquency and 
crime than does Sutherland’s original theory. 

Another example of theoretical reformulation is that of Robert Agnew’s 
1985 general strain theory. Agnew sought to “broaden the concept of strain, 
beyond that produced by the discrepancy between aspirations and expectations. 



History of Criminological Thought 


47 


to encompass several sources of stress or strain” (Akers, 1997:131). General 
strain theory suggests that crime and delinquency are the result of stress, brought 
about through (a) the failure to achieve one’s personal goals; (b) the removal 
of positively valued stimuli (loss of a family member or partner); and/or (c) 
confrontation with negative stimuli (child abuse, victimization, or adverse school 
experiences for the young person). By introducing the concept of stress as an 
adaptation to these three possible mechanisms. Agnew takes a more macrolevel 
theory (Merton’s strain theory) and produces a microlevel (individual) explana¬ 
tion for crime. 

Theoretical competition and reformulation are both equally valid methods 
for theoretical growth and development. So too is theoretical integration: 

The combination of two or more pre-existing theories, selected on the basis 
of their perceived commonalities, into a single reformulated theoretical 
model with greater comprehensiveness and explanatory value than any one 
of its component theories (Famworth, 1989:95). 

Theoretical integration has received both positive and negative reactions 
from criminological theorists. Hirschi (1989), for example, has argued against 
integration because he sees it as just another method of competition and therefore 
unnecessary. This stems from the notion that theorists, when choosing which 
theories to integrate, will be biased in favor of their “pet” theories. Akers (1997: 
207), on the other hand, while agreeing that theorists should be careful not to 
end up with “theoretical mush,” sees a great value in integration. Akers contends 
that Hirschi and others err when they insist on keeping theories separate, espe¬ 
cially when there is a great deal of overlap between them. 

Theoretical integration is a tricky process and any attempt has to take into 
consideration the major propositions and concepts of the separate theories. It 
would not make sense to attempt to integrate theories that at their core seem 
diametrically opposed. What appears to be lacking in modem attempts at theoreti¬ 
cal integration is the lack of explanation by the author as to how to reconcile any 
major differences between the propositions of one theory and those of another. 
Although no single theory can explain all crime and delinquency, and to link 
compatible theories with each other as a way of broadening what we know about 
this social phenomenon makes sense, there is much to be attended to in the pro¬ 
cess, or we will end up with theoretical mush, and the richness of the original 
theory will be lost. 


VII. CONCLUSIONS: WHAT GOOD IS 
CRIMINOLOGICAL THEORY? 

Criminological theory offers explanations for crime and delinquency. More spe¬ 
cifically, a theory makes a statement about the relationship between two or more 



48 


Sims 


social phenomena. The purpose of theory is to explain and predict behavior, and 
the field of criminological thought has lived up to that task. An inordinate amount 
of work has gone into the development and testing of theories of crime, and 
volumes have been written about those efforts. We know much more about the 
production of crime and delinquency at the beginning of the 21st century than 
we did in 1764 when Beccaria wrote his hundred-page treatise. On Crimes and 
Punishment. 

Beyond, however, the contribution to the knowledge of what causes people 
to become criminal from years of criminological thought, is the contribution that 
theory has made in the criminal justice policy arena. If a theory can offer an 
explanation for crime, and if it has withstood strong empirical testing, it should 
offer a solution to the problem. Returning to the opening example of the murder 
of the Baroness in which students in the classroom are asked to explain what 
caused her death, another task that students are sometimes asked to perform is 
to come up with the policy implications of the theory. This process often produces 
much heated debate, especially when it comes to the policy implications of 
Lombroso’s biological theory, for example. If the theory says that criminality is 
inherited, would the policy implication for that theory be to identify criminals 
and have them undergo forced sterilization? On the other hand, if social control 
theory says that crime is the result of a weak or broken bond with society, would 
not the policy implications of that theory suggest that society could intervene in 
such a way as to strengthen one's bonds to family or to the school? 

There is much to be learned from criminological theory. Laub et al. (1995) 
has argued that it is time to stop thinking about crime in terms of either “tough” 
or “soft” approaches but to think about “smart”vs. “dumb” approaches to the 
crime problem. A dumb approach to crime is to formulate policy based on a 
hunch; a smart approach to crime is based on good research, itself grounded in 
good theory. A good theory is one that makes sense and that has stood the test 
of time. A good theory is one that has come to be recognized as having made a 
valuable and worthwhile contribution to the knowledge of crime causation, and 
as such, has much to offer policy makers who are interested in interventions that 
could help curb the problem of crime. While not a panacea for the crime problem, 
theory does move us closer to a solution than do mere hunches or knee-jerk 
reactions. 


REFERENCES 

Adler, F., Mueller, G. O. W., and Laufer, W. S. (1999). Criminology: The Shorter Version, 
3rd ed., McGraw Hill, New York. 

Agnew, R. (1985). A revised strain theory of delinquency, Social Forces 64: 151— 
167. 



History of Criminological Thought 


49 


Akers, R. A. (1973). Deviant Behavior: A Social Learning Approach, Wadsworth, Bel¬ 
mont, CA. 

Akers, R. A. (1985). Deviant Behavior: A Social Learning Approach, 3rd ed., Wadsworth, 
Belmont, CA (Reprinted, 1992 by Techbooks, Fairfax, VA. 

Akers, R. A. (1997). Criminological Theories: Introduction and Evaluation. Roxbury 
Press, Los Angeles, CA. 

Beccaria, C. (1764) [1980] On Crimes and Punishment, The Bobbs-Merrill Company, 
Inc., Indianapolis, IN. 

Becker, H. (1963). The Outsiders: Studies in the Sociology of Deviance, revised edition. 
Free Press, 1966, New York. 

Bohm, R. M. (1997). A Primer on Crime and Delinquency , Wadsworth, NY. 

Booth, A., and Osgood. D. W. (1993). The influence of testosterone in deviance in adult¬ 
hood: assessing and explaining the relationship. Criminology 31: 93-117. 

Burgess, R. L„ and Akers, R. L. (1966). A Differential association-reinforcement theory 
of criminal behavior, Social Problems 14: 128-147. 

Chambliss, W. J. (1975). Criminal Law in Action, Hamilton, Santa Barbara, CA. 

Cloward, R., and Ohlin, L. (1960). Delinquency and Opportunity, Free Press, Glencoe 
IL. 

Cohen, A. K. (1955). Delinquent Boys: The Culture of the Gang, Free Press. Glencoe, 
IL. 

Cornish, D. B., and Clarke, R. V. (eds.) (1986). The Reasoning Criminal: Rational Choice 
Perspectives on Offending, Springer, New York. 

Einstadter, W., and Henry, S. (1995). Criminological Theory: An Analysis of Its Underly¬ 
ing Assumptions. Harcourt Brace, New York. 

Erikson, E. (1950). Childhood and Society, Penquin, Harmondsworth, England. 

Famworth, M. (1989). Theory integration versus model building, in Theoretical Integra¬ 
tion in the Study of Deviance and Crime, Messner, S. F., Kronn, M. D. and Liska, 
A. E. eds., State University Press of New York Press, Albany, NY. 

Freud, S. (1962). The Ego and the Id, W. W. Norton and Company, New York. 

Goring, C. (1913). The English Convict: A Statistical Study, Patterson Smith Reprint, 
1972, Patterson Smith, Montclair, NJ. 

Hirschi, T. (1969). Causes of Delinquency, University of California Press Berkley, CA. 

Hirschi, T. (1989). Exploring Alternatives to Integrated Theory, in Theoretical Integration 
in the Study of Deviance and Crime, Messner, S. F., Krohn, M. D.. and Liska, 
A. E., eds., State University of New York Press. Albany, NY. 

Laub, J. H„ Sampson, R. J., Corbett, Jr., R. P., and Smith, J. (1995). The public policy 
implications of a life-course perspective on crime, in Crime and Public Policy: 
Putting Theory to Work, Barlow, H., ed, Westview: Boulder. CO, pp. 99-106. 

Lombroso, C. (1876). The Criminal Man, Hoepli, Milan. 

Martin, R., Mutchnick, R. J., and Austin, W. T. (1990). Criminological Thought: Pioneers 
Past and Present, Macmillan Publishing Company, New York. 

Mead, G. H. (1934). Mind, Self, and Society, University of Chicago Press, Chicago, IL. 

Merton, R. K. (1938). Social structure and anomie, Am. Sociol. Rev. 3: 672-682. 

Nye, F. I. (1958). Family Relationships and Delinquent Behavior, Wiley Press, New York. 

Park R. E. and Burgess, E. (1925). The City, University of Chicago Press, Chicago, IL. 

Phillipson, C. (1970). Three Criminal Law Reformers, Patterson Smith, Montclair, NJ. 



50 


Sims 


Quinney, R. (1980). Class, State and Crime, 2nd ed., Longman, New York. 

Reckless, W. (1961). A new theory of crime and delinquency. Fed. Probation 25: 
42-46. 

Reiss, A. J. (1951). Delinquency as the failure of personal and social controls. Am. Sociol. 
Rev. 16: 196-207. 

Scroggs. J. R. (1985). Key Ideas in Personality Theory, West Publishing, New York. 
Shaw, C. R., and McKay, H. D. (1942). Juvenile Delinquency in Urban Areas: A Study 
of Delinquents in Relation to Differential Characteristics of Local Communities in 
American Cities, University of Chicago Press, Chicago, IL. 

Siegel, L. J. (1989). Criminology, 3rd ed., West Publishing, St. Paul, MN. 

Sims, B. (1997). Thinking About Crime and Punishment: An Analysis Of the Public’s 
Perceptions of Causation and Sanctions, Unpublished dissertation. 

Tannenbaum, F. (1938). Crime and the Community, Ginn, Boston, MA. 

Toby, J. (1957). Social disorganization and stake in conformity: Complementary factors 
in the predatory behavior of hoodlums, J. Criminal Law, Criminol., and Police 
Science 48: 12-17. 

Void, G. B. (1958). Theoretical Criminology, Oxford University Press, New York. 
Yochelson, S., and Samenow, S. (1976). The Criminal Personality, Jason Aronson, New 
York. 



4 

Comparative Criminal Justice 


Mathieu Deflem and Amanda J. Swygart 

Purdue University, West Lafayette, Indiana 


This chapter offers a review of the most central themes and issues of comparative 
research on criminal justice. The emphasis is on investigations of the contempo¬ 
rary, rather than the historical, dimensions of criminal justice, particularly the 
most recent developments in comparative criminal justice research over the past 
decade. To offer a useful introduction to the rich domain of comparative criminal 
justice, this review offers a discussion of relevant themes following a trajectory 
from criminal law and procedure, including adjudication, over law enforcement, 
to corrections and other forms of punishment. A separate section deals with the 
significance of ethnicity, age, and gender in comparative criminal justice. The 
focus of this chapter is on empirical research findings, but in the final section 
special attention is devoted to conceptual and methodological issues specific to 
comparative research on criminal justice. 


I. NATIONAL SYSTEMS OF CRIMINAL JUSTICE ACROSS 
THE WORLD 

There are major variations among the criminal justice systems of the nations of 
the world. These national systems, moreover, have undergone important transfor¬ 
mations over the course of history. Research has focused attention on such broad 
comparisons across the world and over time. 

Important differences exist between Western systems of criminal justice 
and their non-Westem counterparts (see Adler, 1983; Ebbe, 1996; Fennell et al., 
1995; Fields and Moore, 1996). Within Western nations, there are variations in 
the concepts and goals of criminal justice, but they largely represent variations 
on a similar theme, especially when compared with other criminal justice systems 


51 



52 


Deflem and Swygart 


in non-Western settings. For example, research has analyzed the roots of the 
United States system in Anglo-Saxon legal culture and explored the differences 
that have come to exist between contemporary systems that evolved in that tradi¬ 
tion, such as in Canada and England. In a comparative analysis of pretrial preju¬ 
dice in the Canadian and US judicial systems, for instance, Vidmar (1996) notes 
that the Canadian legal system, unlike the American system, stresses the right 
to a fair trial over the rights of a free press, manifested in the judge’s right to 
ban the public and the press from the courtroom if it is deemed to be in the best 
interest of public morality or necessary to maintain order. 

McKenzie (1994) likewise brings out differences within Anglo-Saxon sys¬ 
tems, emphasizing the different legal ideologies of criminal justice in the United 
States and the United Kingdom. McKenzie found that the US system relies on 
a due process model that emphasizes the rights of the defendant, while the United 
Kingdom’s crime control model stresses the function of criminal justice to punish 
the guilty. In a similar vein, Hirschel and Wakefield (1995) note some marked 
differences between courtroom procedures in England and the United States, set¬ 
ting England’s structured system of barristers and solicitors apart from the infor¬ 
mal, sometimes televised proceedings in the United States. 

In comparing different but related systems of criminal justice, researchers 
often suggest how one system can learn from the other. Thus, comparing the US 
and French criminal justice systems, Frase (1990) suggests that the United States 
might adopt from the French system a variety of features, such as more careful 
selection and supervision of police, prosecutors, and judges; more effective regu¬ 
lation of prosecutorial charging discretion; and increased use of alternatives to 
plea bargaining. 

More important than such suggestions, which may remain without real con¬ 
sequences, are the various trends of convergence between criminal justice sys¬ 
tems across different countries that researchers have found to have been taking 
place in recent decades. For example, describing differences between the US and 
UK systems, McKenzie (1994) notes that the United Kingdom has shifted to¬ 
wards adopting a due process model, while the U.S. increasingly employs crime 
control strategies. 

Likewise, Zedner (1995a) discusses shifts in criminal justice ideology in 
Britain and Germany and notes that the once more liberal penal ideology of Brit¬ 
ain has moved to a harsher approach, as manifested, for instance, by adopting 
tougher noncustodial sentences and longer custodial sentences. In contrast, Ger¬ 
many’s traditional harsh system of penology has recently shifted towards adopt¬ 
ing more lenient strategies, which are manifested in a shortening of prison time 
and an easement of sentences. 

In similar vein, research from Fennell and associates (1995) found that the 
British and Dutch systems of criminal justice have also converged as the criminal 
justice procedures in the two countries are being harmonized, as part of a broader 



Comparative Criminal Justice 


53 


plan of so-called Europeanization in the countries of the European Union. The 
authors note that transnational efforts such as reform practices based on an inter¬ 
national human rights discourse have facilitated this assimilation trend, even 
though the legal systems of these nations are based on distinct ideologies. 

Beyond the differences among criminal justice models applied in the West¬ 
ern world, there are important variations between Western and non-Westem sys¬ 
tems. Allen (1993) applies a convenient model that differentiates among four 
systems of criminal justice: common, civil, Islamic, and Socialist systems. Com¬ 
mon law systems, for example, in the United States and United Kingdom, are 
adversarial-based, involving two opposing sides with a lawyer representing the 
defendant and a prosecutor representing the people. The common law system 
typically relies on prior court decisions as precedents to be used in later court 
cases. The civil law or Continental system (which is applied, for example, in 
Sweden, Japan, and Germany) is an inquisitorial model that typically grants fewer 
rights to the accused and operates on the premise that pretrial inquiry and applica¬ 
tion of written law should guide society’s quest for justice. Islamic law, which 
is prevalent in Arabic countries, is rooted in religious values and derives its prem¬ 
ises from the Koran. Saudi Arabia, for example, has a criminal justice system that 
is completely integrated with Muslim religious culture (Adler, 1983). Socialist 
systems, finally, reflect a Marxist-Leninist ideology that views the criminal jus¬ 
tice system as a means of training a nation’s people to fulfill the responsibilities 
the state has proclaimed to be ideal. 

Comparative criminal justice research has also devoted attention to the vari¬ 
ations that exist between nations because of their different cultural values and 
political ideas. For instance, the specific characteristics of the criminal justice 
systems of Socialist countries have also been investigated. Epstein and Wong 
(1996), for example, have analyzed the implications of the concept of dangerous¬ 
ness in the People’s Republic of China. The authors suggest that in the Chinese 
systems those perceived as dangerous to society receive harsher punishments 
than other types of criminals, especially when they engage in so-called counter¬ 
revolutionary political actions or have knowledge of state secrets. Other Socialist 
countries have similarly been found to apply harsher forms of punishment than 
exist in democratic nations (Arthur, 1996). 

To round off this review of national systems, a word needs to be said about 
systems of criminal justice in Africa. Arguably the one continent of the world 
that has experienced the most radical changes since the past century, Africa has 
criminal justice systems facing special circumstances because of the dual heritage 
of colonialism and traditionalism. Colonialism refers to the time when many 
countries in Africa were occupied by Western countries including England, Ger¬ 
many, and France. Traditionalism relates to the conventional values and ideas 
that have historically prevailed in the continent. During colonial rule, Western 
powers introduced values and criminal justice systems that had not evolved spon- 



54 


Deflem and Swygart 


taneously in the African context, leading to tensions and conflicts within the 
system. Traditional African values are similarly in tension with more modem 
notions that may have emerged, especially among the younger generations. These 
problematic conditions lead to inconsistency in the criminal justice system. In a 
study of criminal justice in Sierra Leone, for instance, Thompson and Potter 
(1997) note conflicts that exist between traditional or customary law and English- 
imported law. Adler (1983) likewise discusses the case of Algeria, where a 
French-imported system of law is attempting to be combined with Socialist prin¬ 
ciples and Islamic culture. 

These and other transformations indicate that it is crucial to look at national 
systems of criminal justice not only in terms of broad comparisons across regions 
of the world but also in historical terms as being subject to transformations over 
time. Particularly in recent decades, criminal justice research has therefore cen¬ 
tered on patterns of change, increasing interdependency between national sys¬ 
tems, and lasting problems of multiple traditions of criminal justice. In the next 
section, more specific forms of these transformations are discussed in terms of 
recent political and economic changes. 


II. COMPARATIVE CRIMINAL JUSTICE AND GLOBAL 
SOCIAL CHANGE 

The patterns of social change that have recently affected and are still affecting 
criminal justice systems across the world are clearly among the central develop¬ 
ments of contemporary comparative criminal justice research. Broadly speaking, 
these processes of change involve developments centering around civilization 
and modernization, and, more particularly, the impact of certain economic devel¬ 
opments and political changes. This section explains what these changes are and 
their implications for criminal justice. 

A. Civilization and Modernization 

Heiland and colleagues (1992) have usefully introduced the concepts of civiliza¬ 
tion and modernization to analyze long-term changes in criminal justice. The 
authors posit that a process of civilization is shown in a transformation of criminal 
justice institutions towards decriminalization, greater tolerance, a reduction of 
lengthy periods of imprisonment and an expansion of prison alternatives. Socie¬ 
ties undergoing civilization processes also incorporate a relatively broad range 
of crime control strategies, including punitive as well as rehabilitative and pre¬ 
ventive measures. 

Processes of modernization revolve around the impact of particular demo¬ 
graphic, economic, and technological changes that require adaptations by the 



Comparative Criminal Justice 


55 


criminal justice system. These adaptations, unlike civilization trends, are not 
planned on the basis of certain ideologies of criminal justice, but are made in 
consequence of certain changes in social conditions. For example, advances in 
computer technologies such as Internet services and online banking have intro¬ 
duced new criminal opportunities. Responses to such developments of modern¬ 
ization typically involve the introduction of new and improved efforts to control 
better an expected increase in crime. 

Applying the concepts of civilization and modernization to a range of de¬ 
veloped societies (for example, the United States, Japan, and Western Europe), 
developing societies (for example, Jamaica, India, and Nigeria), and Socialist 
nations (for example, Hungary and China), Heiland and co-workers (1992) found 
a trend toward civilization in some countries. In Germany and Sweden, for in¬ 
stance, there has increasingly been greater tolerance toward criminals and an 
increase in the use of noncustodial sentences that offer alternatives to prison. In 
the United States, on the other hand, the authors discovered a recent trend away 
from civilization, with the reintroduction of capital punishment and an increase 
in prison sentencing. 

According to Heiland et al. (1992), the criminal justice systems in devel¬ 
oping societies are characterized by a relatively low degree of civilization. These 
countries typically have harsher penalties and face many corrupt influences on 
the criminal justice system. However, the decreased use of the death penalty 
within some developing countries is an indication that these countries are under¬ 
going trends towards civilization. Moreover, since the fall of the Berlin Wall and 
the collapse of Communism in Eastern Europe, a trend toward civilization has 
also shaped criminal justice in former Socialist countries. 

B. The Impact of Economic Modernization 

Modernization trends have taken place at various times in the history of criminal 
justice systems. Most spectacular in recent years has been the transition to a free 
market economy in many countries of the world. Whereas once certain countries, 
especially the Communist countries of Eastern Europe, had an economy planned 
by central governments, their economic markets are now opened up to enable free 
trade and enterprise. These economic changes have created new opportunities, but 
have also led to an increase in crime, particularly drug trafficking and money 
laundering. 

In recent years, the criminal justice response to the trade in illegal drugs 
has been influenced by developments in the production of drugs, on the one hand, 
and the internationalization of the US-instigated war on drugs, on the other. Re¬ 
search has revealed important geographical shifts in the production and distribu¬ 
tion of drugs (Mora, 1996; Dobinson, 1993). The Far East has traditionally been 
a focus of concern because it was generally seen as the production center of 



56 


Deflem and Swygart 


heroin. More attention has recently gone to Middle and South America and other 
nations that have a cocaine-producing industry. Furthermore, because of height¬ 
ened drug control in some countries, particularly Columbia, Bolivia, and Peru, 
a shift has occurred in the concentration of the drug industry to other nations, 
such as Brazil and the Southern Cone of Latin America. In these countries, en¬ 
hanced policy actions have resulted in an increasing number of arrests of drug 
traffickers and destructions of drug-producing laboratories and drug-transporting 
airstrips. Yet these actions have not managed to end the production of drugs, but 
rather seem to have moved its centers into other regions. 

Research has also discussed the implications of the US war on drugs for 
criminal justice systems in other nations. Ethan Nadelmann’s (1993) excellent 
study has shown the influences of US drag police agents on their counterparts 
in Europe and Southern America. This dominance of the United States in the 
policing of chugs has led to increasing controls over the enforcement strategies 
and criminal justice policies of drugs in other countries. As a result, the interna¬ 
tionalization of the war on drugs has taken on truly global proportions (Vaughn 
et al., 1995; Friman, 1994). In the 1980s, the Japanese government, for instance, 
launched a war on drugs as a direct result of US pressure to adopt harsher mea¬ 
sures. 

Changes in the global drug situation are also affected by modernization 
processes that have taken place in some countries (Sillaste, 1996; Gaylord and 
Levine, 1997). For example, since Communism was abolished in the former So¬ 
viet Union (now known as Russia and the Commonwealth of Independent States 
[CIS], these countries have been experiencing a growing drug problem. In China, 
likewise, the transition from a Socialist to a capitalist economy has created new 
opportunities for crime and corruption. 

Among the most spectacular effects of recent developments in the drag 
economy are the increasing number of money-laundering schemes associated 
with the drug trade. Money laundering affects many countries. As Taylor (1991) 
notes, money-laundering activities blur the boundaries between illegal and legiti¬ 
mate business, especially when and because they are often associated with legal 
and respectable financial institutions. For instance, in the 1980s it was discovered 
that the Bank of Credit and Commerce International (BCCI) had been playing 
an important role in international criminal activities. The case is now widely 
known as the BCCI scandal. It was revealed that the bank was connected to drug 
trafficking, money laundering, smuggling, arms trades, and terrorism (Passas, 
1993). 

C. The Global Move Towards Democratization 

Among the countries that in recent years have been reformed as democracies, 
the former Soviet Union and South Africa have received the most attention in 



Comparative Criminal Justice 


57 


criminal justice research (Savelsberg, 1995; Louw, 1997). In Russia and the other 
countries of the CIS that used to form the Soviet Union, the criminal justice 
system is in a state of disarray. It is unclear what the direction is of the new 
system of criminal justice that will replace the old communist system (Allen, 
1993). In Russia, for example, the public still views the courts and other criminal 
justice agencies as instruments of repression. Furthermore, it is uncertain whether 
Russia will adopt a Continental criminal justice system that stresses crime reduc¬ 
tion, or a common law ideology that emphasizes due process requirements. Based 
on research by Sanders and Hamilton (1992), Russian residents appear to favor 
a model that guarantees individual rights, but the outcome remains undecided. 

In South Africa, there has also been a breakdown of the criminal justice 
system since the abolition of a politics of apartheid, the political system in which 
the white minority had all power and controlled the black majority of the popula¬ 
tion (Steytler, 1991; Louw. 1997). The South African organization of criminal 
justice remains poorly developed, with inadequately trained and underequipped 
personnel, inefficient information technologies, low wages, and a hopelessly out¬ 
dated incarceration system. Given the long history of the country in mistreating 
the black population, the popular perceptions that view South African criminal 
justice systems as a means of oppression are difficult to eradicate. Such percep¬ 
tions pose serious obstacles to the fulfillment of democratic reforms. 


III. LAW ENFORCEMENT IN GLOBAL PERSPECTIVE 

Research on policing has traditionally been and today continues to be among the 
richest areas of cross-cultural criminal justice research. Two particular directions 
in the broad area of police research from a comparative perspective are apparent. 
In one, research is devoted to comparisons of the various styles of policing across 
the world; in the other, investigations focus on international developments of 
policing across the borders of countries. 

A. Comparative Police Research 

Comparative research of law enforcement organizations investigates a variety of 
issues, including the function and organization of police in different parts of the 
world (e.g., Brodeur, 1995; Bayley, 1985), police practices in different countries 
(e.g„ Chevigny, 1995), and the cross-cultural use of selected police strategies 
(e.g., Fijnaut and Marx, 1995). This type of research has revealed important simi¬ 
larities and differences between national and regional police systems across the 
globe. In parallel to our earlier observations on national systems of criminal jus¬ 
tice in general, police research has also observed certain patterns of convergence 
across nations. For example, research reported in the book Undercover: Police 



58 


Deflem and Swygart 


Surveillance in Comparative Perspective (Fijnaut and Marx, 1995) found that 
police of Western nations have adopted techniques and strategies of covert sur¬ 
veillance that are quite similar. Chevigny’s (1995) insightful research on police 
violence likewise reveals that there are even similarities between police institu¬ 
tions resorting to violence in the United States and in several countries in South¬ 
ern America. 

The systems of law enforcement that exist across the world, especially in 
the industrialized nations of the West, have generally been well researched (e.g., 
Bayley, 1985; Deflem, 1994; Jiao, 1995). Police scholars have revealed that an 
important distinction exists between the Continental European system, which typ¬ 
ically has a centralized military-like police force, and the British system of polic¬ 
ing that is decentralized and operates closer to the community. The British system 
has also been most influential in shaping the organization of law enforcement in 
the United States. The police model that exists in the United States therefore, 
favors a particularly strong tradition of local policing. 

Japan traditionally has been among the most researched non-Westem na¬ 
tions in police studies, because the level of crime in Japan is comparatively very 
low (Bayley, 1991; Steinhoff, 1993; Westermann and Burfeind, 1991). The low 
incidence of crime in Japan is explained by the fact that there is a very high 
degree of citizen involvement in the Japanese criminal justice system (Ferdinand, 
1994). The country therefore relies on an extraordinarily high correspondence 
between the values of its citizens and the prescriptions of its legal system (Schnei¬ 
der, 1992). However, research has recently uncovered that the Japanese govern¬ 
ment has found it increasingly necessary to enhance police powers (Aldous and 
Leishman, 1997). In a contemporary study of police practices, Miyazawa (1992), 
for example, found that Japanese police detectives constantly struggle to do their 
investigative work as efficiently as possible, while making sure that they, at least 
technically, do not infringe upon the rights of the accused. 

Comparative police research has recently focused investigations on those 
nations implementing democratic systems of politics and criminal justice. Re¬ 
search on democratic styles of policing has particularly been done in the former 
Soviet Union (e.g., Shelley, 1996) and in South Africa (e.g., Brogden and Shear¬ 
ing, 1993). The findings of this research parallel the earlier discussed observations 
on democratization of the criminal justice system in general: the new democratic 
ideals of policing are admirable, but their practical implementation faces many 
technical challenges and forces of resistance. 

For example, in Russia, officials recognize that the new civil police cannot 
be as political as it used to be under Communism and instead must now focus 
on violations of criminal law in a way that guarantees the rights of suspects. 
However, Russian police also face tremendous difficulties in putting these demo¬ 
cratic ideas in to practice, because the police forces are underequipped and under¬ 
staffed (Allen, 1993). Russian police also lack the necessary resources to deal 



Comparative Criminal Justice 


59 


with new and more sophisticated forms of criminal behavior, such as money 
laundering and drug trafficking. 

Similar to the problems that exist in Russia, police in South Africa are still 
associated, particularly by the black population, with the repressive force that 
existed during the Apartheid regime. These popular perceptions impede changes 
implemented in police organizations to create a civilian force involved with order 
maintenance and crime control in a democratic way (Brogden and Shearing, 
1993). 

B. Policing Across National Borders 

In recent years, police research has been concerned more than ever before with 
dimensions of law enforcement that traverse the borders of national-legal juris¬ 
dictions (e.g., Deflem, 1996, 1997; Sheptycki, 1995, 1996; Marx, 1997; McDon¬ 
ald, 1997a). This research has revealed that police officials often operate outside 
the borders of their countries, although police institutions are by definition sanc¬ 
tioned by the governments to fight crime and maintain order within their borders 
(Deflem, 1996; Huggins, 1998; Nadelmann, 1993). 

International police research has been applied in a variety of contexts. Thus, 
research has been devoted to recent developments in the control of national bor¬ 
ders (for instance, at the US-Mexican border), the international activities of na¬ 
tional and local police organizations (for example, the work done by the FBI in 
foreign countries), and the formation of international networks of police (for in¬ 
stance, Interpol) (see Anderson, 1989; Deflem, in press). 

Research has revealed that police agents working abroad are less guided 
by judicial control and political supervision and more likely to do whatever tasks 
they see fit given the circumstances. Police abroad may as such be less guided 
by concerns related to civil rights and democratic procedure. This democratic 
deficit of international policing is seen as an important social problem, because 
it can lead to abuses by police. James Sheptycki (1996), for instance, has raised 
concerns over the lack of accountability that arise from police agents investigat¬ 
ing suspects in foreign countries without the limitations placed on police organi¬ 
zations in their own country. Particularly in the fight against drugs and drug 
trafficking, Sheptycki notes that police agencies rely on interpersonal networks 
that can be effective, but difficult to monitor, thus undermining the ideal of demo¬ 
cratic oversight. 

Also related to democratization in the new global order are the efforts by 
police from established democratic regimes to assist with the reorganization of 
law enforcement in newly formed and evolving democracies. Comparative police 
expert David Bayley (1995) has argued that police institutions are central in the 
democratization process, because law enforcement agencies are such a visible 
instrument of power with which many citizens are confronted. Bayley suggests 



60 


Deflem and Swygart 


that US authorities can assist foreign governments with democratizing their po¬ 
lice, if at least some conditions are fulfilled. For example, Bayley argues, foreign 
police should be assisted by US. agents only if the larger political system of the 
foreign country is genuinely democratic and if efforts are made by foreign police 
to eliminate all forms of corruption. 


IV. THE WORLD OF CORRECTIONS AND PUNISHMENT 

As rich as the tradition of comparative police research is, corrections and punish¬ 
ment appear to have received much less attention in comparative research. This 
may be a result of the fact that punishment is the final stage in the system of 
criminal justice and is therefore seen as determined by prior stages in the criminal 
justice process. Such a conception, however, seems to underestimate the impact 
of the dynamics of punishment. There has, fortunately, been some research that 
has separately focused on criminal sanctions from a comparative viewpoint. 

Closely related to the issues addressed in the first part of this chapter, key 
differences in punishment and prison culture relate to the varying roots and tradi¬ 
tions of national criminal justice systems as a whole (Vagg, 1994). Thus, for 
instance, important differences exist between systems of criminal justice that 
have methods of corporal punishment in effect and those that typically resort to 
a deprivation of liberty as the ultimate criminal sanction. 

Furthermore, nations differ in their correctional policies. For example, 
Hirschel and Wakefield (1995) found that the United States has, much more than 
the United Kingdom, been engaged in building modem prisons to combat the 
problems of prison overcrowding, underfunding, and understaffing. Yet, the au¬ 
thors argue, the British option of providing alternatives to imprisonment and giv¬ 
ing shorter sentences could be effectively transplanted to the United States. The 
authors also suggest trends of convergence between the two countries, which is 
especially clear from an increased use of community alternatives such as proba¬ 
tion and electronic monitoring in both countries. 

Patterns of global change, moreover, are central in countries where major 
shifts in political and ideological organization will also imply radical changes in 
corrections policy. Most radical, of course, are changing circumstances in rapidly 
transforming countries such as South Africa and the former communist nations. 
Examining prison conditions in the former communist countries of Eastern Eu¬ 
rope, King (1996), for example, observed a sudden drop in the prison population 
following the fall of the Communist regimes and the implementation of provis¬ 
ions to ensure more humane conditions in prisons. 

Certain forms of punishment have been the topic of separate investigations 
in comparative research, especially the death penalty and electronic home moni¬ 
toring. This is remarkable, because it means that special attention has gone to 



Comparative Criminal Justice 


61 


one of the oldest and most radical forms of punishment, the taking of a person’s 
life, and to a very modem and sophisticated tool of control relying on the latest 
technologies. Discussing both sanctions, Immarigeon (1997) observes that elec¬ 
tronic home monitoring has seen a very spectacular rise in implementation in 
many (mostly Western) countries in recent decades. This development is a func¬ 
tion of an increasing quest for efficiency and cost-reduction in punishment. In 
terms of the death penalty, there are considerable cross-national variations. The 
political changes in Russia and South Africa, for example, have resulted in an 
abolition of capital punishment for many offenses. In other nations, there has 
also been a shift away from capital punishment as a result of greater concerns 
for human rights. This supports the civilization trend noted earlier, although it 
cannot be denied that there has also been a return of capital punishment in some 
contexts (for instance, in the United States). 


V. THE CROSS-CULTURAL SIGNIFICANCE OF ETHNICITY, 

AGE, AND GENDER IN CRIMINAL JUSTICE 

This section focuses on issues surrounding ethnicity, age, and gender in compara¬ 
tive criminal justice research. The special treatment of these issues is warranted 
because they are, and have been for a long time, at the heart of many discussions 
in criminal justice research, particularly because they are often related to impor¬ 
tant inequalities. Indeed, research has consistently revealed that ethnic minorities, 
juveniles,and men are overrepresented in the criminal justice systems within na¬ 
tions. This section reviews how these issues have been investigated in compara¬ 
tive research. 

A. Immigrants and Ethnic Minorities 

An extremely rich tradition exists in comparative criminal justice research that 
devotes attention to the treatment of immigrants and ethnic minorities in criminal 
justice systems across the world. Michael Tonry (1997) has usefully summarized 
the findings of comparative research on ethnic minorities and immigrants, finding 
that in every country that has been studied crime and incarceration rates of the 
members of most minority groups greatly exceed those of the majority popula¬ 
tion. Also, the minority groups that have a high crime and/or imprisonment rate 
typically belong to socially and economically disadvantaged social classes. In 
addition to overrepresentation of ethnic minorities and immigrants in criminal 
activity, there is also found to be discriminatory bias in pretrial confinement deci¬ 
sions and sentencing procedures towards these groups. 

Turning to some of the more specific findings of criminal justice research 
on minority and immigrant groups, Tonry’s observations appear to find corrobo- 



62 


Deflem and Swygart 


ration in many countries (see Albrecht, 1997; Killias, 1997; McDonald, 1997b; 
Roberts and Doob, 1997; Tsuda, 1997; Vagg, 1993). In the United States, the 
discriminatory treatment of ethnic minorities (especially African-Americans and 
Hispanics) at all stages of the criminal justice system has been well documented 
for many years (Sampson and Lauritsen 1997). 

In more recent years, US criminal justice agencies have been found to have 
increased control efforts against a new under-class of illegal immigrants, mostly 
from Mexico and Southern America. Likewise, William McDonald (1997b) has 
documented that since the passing of the Violent Crime Control and Law Enforce¬ 
ment Act of 1994, the Immigration and Naturalization Service (INS) has received 
an unprecedented amount of funding for stepping up efforts to reduce illegal 
immigration by hardening border control and deterring the employment of illegal 
aliens. 

The increase in law enforcement activities more exclusively directed to¬ 
wards immigrants and minorities has occurred in the United States as well as in 
Europe. Ineke Haen Marshall (1997), for instance, reports that research in Europe 
and the United States shows that police interactions with immigrants and/or mi¬ 
norities are strained and marked by verbal and physical abuse, distrust, prejudice 
and occasionally violence. The author states that discrimination against minorities 
occurs indirectly as a result of poor legal representation, language problems, high 
incidences of specific offenses (such as drug-related and immigration violations), 
and low employment status. 

Research in European nations has found similar discrimination and overre¬ 
presentation of minorities and immigrants at each stage of the criminal justice 
process. For example, Pierre Toumier (1997) conducted research in France and 
found that foreigners are overrepresented among suspected offenders and arrest¬ 
ees because a large proportion of the offenses are specifically immigration-re¬ 
lated. In research in Germany, Albrecht (1997) has likewise found that foreign 
minorities face several problems at the entry level of the criminal justice system 
(for instance, they have a higher chance of pretrial detention), which may lead 
to a systematic discrimination towards foreign nationals. Foreign offenders, also, 
were found to be more likely to receive prison sentences rather than suspended 
sentences or probation. Additional evidence suggests that foreign minorities ex¬ 
perience differential treatment in prison. Richards and associates (1995) similarly 
note that in England the prison experience is particularly harsh for foreign nation¬ 
als because of language difficulties and cultural isolation. 

B. Juvenile Justice and Gender Discrepancies 

It is striking that age and gender, two issues that are central to criminal justice 
research within nations, have hardly managed to influence comparative investiga¬ 
tions. The information available on cross-cultural comparisons of juvenile delin- 



Comparative Criminal Justice 


63 


quency and the proportion of men and women in the criminal justice system is 
very sparse indeed (e.g., Curran and Cook, 1993). Yet, what limited attention 
has been given to these area of research has proved insightful. 

Dobash and associates (1990) undertook a comparative study of the treat¬ 
ment of young people in the criminal justice systems of Scotland and Germany. 
The authors argue that in Scotland and specialized juvenile courts, the so-called 
Children’s Hearings Panels, operate as a separate system of criminal justice that 
is mostly inspired by a therapeutic and paternalistic ideology, which puts empha¬ 
sis on a rehabilitative and caring approach. However, the Scottish juvenile justice 
system also imposes prison sentences in correctional facilities that emphasize 
work, military drill, and physical training. In Germany, cases involving juveniles 
are also heard in special courts, on the basis of a separate system of Youth Law. 
In the German system, however, the focus is on education rather than punishment, 
with limited incarceration options and generally shorter sentences. 

Harvey and associates (1992) have undertaken an interesting comparative 
analysis of gender differences using data from the Second and Third United Na¬ 
tions Crime Surveys. The authors found that in all countries surveyed between 
1975 and 1985 men always substantially outnumber women at all stages of the 
criminal justice process, from suspicion to apprehension, prosecution, conviction, 
and imprisonment. In some of the countries surveyed between 1975 and 1980 
and in most countries surveyed between 1980 and 1985, women were dispropor¬ 
tionately removed at the deeper stages of the criminal justice process; that is, 
women were gradually released more often than men in the various stages from 
arrest over adjudication in the courts to punishment. A final observation parallels 
findings made within countries: since the 1980s more women are present in the 
criminal justice system than ever before, although the number remains low com¬ 
pared to the numbers of men. 


VI. THE STATE AND FUTURE OF COMPARATIVE 
CRIMINAL JUSTICE 

It is undeniable that comparative research on criminal justice is a rich tradition 
that has made important progress over the years. The benefits of a comparative 
focus may be especially appropriate in the current era of globalization, which 
has brought countries of the world more closely together. A comparative outlook, 
moreover, has been fruitful for research as well as teaching, as shown by the 
many educational texts now available (see Dammer and Reichel, 1997; Deflem, 
1998; Fairchild 1993; Reichel, 1999; Terrill, 1997). Providing clarity in approach 
and presentation, comparative criminal justice research can also hope to be useful 
for the policy questions that confront countries in matters of crime. 



64 


Deflem and Swygart 


A variety of styles and perspectives can be followed in comparative crimi¬ 
nal justice research, focusing on one or more components of the system, on two 
or more countries, in more or less recent times. Based on a model suggested by 
John Vagg (1993), at least four interesting goals of comparative criminal justice 
research can be identified. First, it can make efforts to link crime trends to social, 
economic, or political denominators in different countries. Second, it can make 
direct comparisons between countries in terms of a particular question related to 
one or more aspects of criminal justice. Third, it can strive to produce broad 
generalizations and generate policy recommendations. Fourth, it can detail a wide 
range of consequences and problems that flow from a particular regional develop¬ 
ment. 

Clearly specifying the goals of research is a first and necessary step toward 
the development of any sound strategy of criminal justice research, but some 
issues are specific to research of a comparative nature (Meyer, 1972; Zvekic, 
1996). Arguably the most important consideration in comparative criminal justice 
research is to recognize the possibly country-specific impact of cultural, social, 
economic, and political contexts on the researched criminal justice systems and, 
by implication, on the research findings. In other words, what works in one coun¬ 
try may not necessarily work in another. The variable influences of the wider 
societal context of criminal justice systems should therefore remain of primary 
interest, especially when suggestions are made to transpose or somehow learn 
from criminal justice policies abroad. 

Furthermore, as Hirschel and Wakefield (1995) remark in their study of 
English and US criminal justice systems, both similarities and differences have 
to be documented and weighed over and against one another. Moreover, as John 
Vagg (1993) points out, social, economic, and political conditions will influence 
how the data on criminal justice in various countries are to be treated and utilized. 
The variable conditions, therefore, have to be carefully specified in order to con¬ 
textualize research data properly. 

Researchers should also be clear about the relevant variables to be consid¬ 
ered and should be aware that certain issues may not have an impact in one 
particular jurisdiction but may have relevance in other settings (e.g., Pampel and 
Gartner, 1995). Also methodologically relevant are concerns of measurement er¬ 
ror in countries with less autonomous research traditions, cross-national dispari¬ 
ties in legal and research definitions, failure to define relevant dimensions of 
inquiry operationally, disparity in data collection procedures and availability 
of data, and linguistic problems (Meyer, 1972; Vagg, 1993; Zedner, 1995b). 

As long as one remains sensitive to these important methodological issues, 
it can be possible, as comparative criminologist Freda Adler (1996) recently ar¬ 
gued, for comparative criminal justice research to respond adequately to current 
conditions that have transformed and will continue to transform the world from 
a mere collection of separate nations into an interconnected and interdependent 



Comparative Criminal Justice 


65 


global system. Under those circumstances, a comparative approach to criminal 
justice may also hope to contribute usefully to solutions to the dilemmas and 
challenges that face criminal justice systems across the globe. 


REFERENCES 

Adler, F. (1983). Nations Not Obsessed with Crime, Fred B. Rothman & Co., Littleton, 
CO. 

Adler, F. (1996). Our American Society of Criminology, the world, and the state of the 
art, Criminology 34(1): 1-9. 

Albrecht, H. J. (1997). Ethnic minorities, crime and criminal justice in Germany, Crime 
and Justice 21: 31-99. 

Aldous, C., and Leishman, F. (1997). Policing in post-war Japan: Reform, reversion and 
reinvention, bit. J. Sociol. Law, 25(2): 135-154. 

Allen, G. F. (1993). Restructuring justice in Russia, Fed. Probation 57: 54-58. 

Anderson, M, (1989). Policing the World, Clarendon Press, Oxford. 

Arthur, J. A. (1996). Crime and penal policy in the Socialist African Republic of Tanzania; 
Int. J. Offender Ther. Comp. Criminal. 40: 157-173. 

Bayley, D. H. (1985). Patterns of Policing, Rutgers University Press, New Brunswick, 
NJ. 

Bayley, D. H. (1991) Forces of Order: Policing Modern Japan, 2nd ed., University of 
California Press, Berkeley, CA. 

Bayley, D. H. (1995). A foreign policy for democratic policing. Policing Society 5(2): 
79-93. 

Brodeur, J. P. (ed.) (1995). Comparisons in Policing, Averbury, Aldershot. 

Brogden, M., and Shearing, C. D. (1993). Policing for a New South Africa, Routledge, 
New York. 

Chevigny, P. (1995). Edge of the Knife, New Press, New York. 

Curran, D. J., and Cook, S. (eds) (1993). Special issue: Crime and justice in China and 
Japan, Crime Delinquency 39: 275-392. 

Dammer, H. R., and Reichel, P. L. (1997). Teaching About Comparative/International 
Criminal Justice, Academy of Criminal Justice Sciences, Highland Heights, KY. 

Deflem, M. (1994). Law enforcement in British colonial Africa, Police Studies 17(1): 45- 
68 . 

Deflem, M. (1996). International policing in 19th-century Europe: The police union of 
German states, 1851-1866, Int. Criminal Justice Rev. 6: 36-57. 

Deflem, M. (1997), Policing international society: views from the United States, Police 
Forum, 7(3): 6-8. 

Deflem, M. (1998). International criminal justice on the internet, Inter-Section, 1(2): 
1-4. 

Deflem, M. (in press). International police cooperation in Northern America, in Interna¬ 
tional Police Cooperation: A World Perspective, Das, D. and Koenig, D. eds., Cop- 
perhouse Publishing. 

Dobash, R. P„ Dobash, R. E., Ballintyne, S., Schumann, K., Kaulitzki, R., and Guth, 



66 


Deflem and Swygart 


H. W. (1990). Ignorance and suspicion: Young people and criminal justice in Scot¬ 
land and Germany, Br. J. Criminol. 30(3): 306-320. 

Dobinson, I. (1993). Pinning a tail on the dragon: the Chinese and the international heroin 
trade. Crime & Delinquency 39(3): 373-384. 

Ebbe, O. N. I. (ed.) (1996). Comparative and International Criminal Justice Systems, 
Butterworth-Heinemann, Boston. 

Epstein, E. J., and Wong, S. H. (1996). The concept of ‘dangerousness’ in the Peoples’ 
Republic of China and its impact on the treatment of prisoners, Br. J. Criminol. 
36: 472-497. 

Fairchild, E. (1993). Comparative Criminal Justice Systems, Wadsworth Publishing, Bel¬ 
mont, CA. 

Fennell, P., Harding, C., Jorg, N., and Swart, B. (1995). Criminal Justice in Europe: A 
Comparative Study, Oxford University Press, New York. 

Ferdinand, T. N. (1994). Japanese criminal justice. International Criminal Justice Review, 
4: 72-79. 

Fields, C. B., and Moore, H. (eds.) (1996). Comparative Criminal Justice, Waveland Press, 
Prospect Heights, IL. 

Fijnaut, C., and Marx, G. T. (eds.)(1995). Undercover: Police Surveillance in Comparative 
Perspective , Kluwer Law International, The Hague. 

Frase, R. S. (1990). Comparative criminal justice as a guide to American law reform: 
How do the French do it, how can we find out, and why should we care, Cali. Law 
Rev. 78(3): 539-683. 

Friman, H. R. (1994). Internationa] pressure and domestic bargains: Regulating money 
laundering in Japan, Crime, Law Soc. Change 21(3): 253-266. 

Gaylord, M. S., and Levine, P. (1997). The criminalization of official profiteering: Law¬ 
making in the People’s Republic of China, Int. J. Sociol. Law 25(2): 117-134. 

Harvey L., Burnham, R. W., and Kendall, K., and Pease, K. (1992). Gender differences 
in criminal justice: an international comparison, Br. J. Criminol. 32(2): 208-217. 

Heiland, H. G., Shelley, L. I., and Katoh, H. (1992). Civilization, modernization and the 
development of crime and control, Crime and Control in Comparative Perspectives 
(H. G. Heiland, L. I. Shelley, and H. Katoh, eds.), Walter de Gruyter Publishing, 
New York. 

Hirschel. J. D., and Wakefield, W. (1995). Criminal Justice in England and the United 
States, Praeger, London. 

Huggins, M. K. (1998). Political Policing: The United States and Latin America, Duke 
University Press. Durham, NC. 

Immarigeon, R. (1997). International developments in criminal justice, Fed. Probation 
61: 74-76. 

Jiao, A. Y. (1995). Community policing and community mutuality: A comparative analysis 
of American and Chinese police reforms, Police Studies 18(3/4): 69-91. 

Killias, M. (1997). Immigrants, crime and criminal justice in Switzerland, Crime Justice 
21: 375-405. 

King, R. D. (1996). Prisons in Eastern Europe: Some reflections on prison reform in Roma¬ 
nia, Howard J. Criminal Justice 35(3): 215-231. 

Louw, A. (1997). Surviving the transition: Trends and perceptions of crime in South Af¬ 
rica, Soc. Indicators Res. 41(1-3): 137-168. 



Comparative Criminal Justice 


67 


Marx, G. T. (1997). Social control across borders, in Crime and Law Enforcement in the 
Global Village , McDonald, W. F. ed., Anderson Publishing, Cincinnati, OH. 

Marshall, I. H. (1997). Minorities, Migrants, and Crime: Diversity and Similarity across 
Europe and the United States, Sage, Thousand Oaks, CA. 

McDonald, W. F. (ed.) (1997a). Crime and Law Enforcement in the Global Village, Ander¬ 
son Publishing, Cincinnati, OH. 

McDonald, W. F. (1997b). Crime and illegal immigration. National Inst. Justice J. (232): 
2 - 10 . 

McKenzie, I. K. (1994). Regulating custodial interviews: a comparative study. Interna¬ 
tional Journal of the Sociology of Law, 22(3): 239-259. 

Meyer, J. C„ Jr. (1972). Methodological issues in comparative criminal justice research. 
Criminology 10(3): 295-313. 

Miyazawa, S. (1992). Policing in Japan, State University of New York Press, Albany, NY. 

Mora, F. O. (1996). Victims of the balloon effect: drug trafficking and U.S. policy in 
Brazil and the southern cone of Latin America, J. Social Political Econ. Studies 
21(2): 115-140. 

Nadelmann, E. A. (1993). Cops Across Borders: The Internationalization of U.S. Criminal 
Law Enforcement Pennsylvania State University Press, University Park, PA. 

Pampel, F. C., and Gartner, R. (1995). Age structure, socio-political institutions, and na¬ 
tional homicide rates, Eli. Sociol. Rev. 11(3): 243-260. 

Passas, N. (1993). Structural sources of international crime: Policy lessons from the BCCI 
Affair, Crime, Law Social Change, 20(4): 293-309. 

Reichel, P. L. (1999). Comparative Criminal Justice Systems, 2nd ed., Prentice-Hall, New 
Jersey. 

Richards, M., McWilliams, B., Batten, N„ Cameron, C., and Cutler, J. (1995). Foreign 
nationals in English prisons, Howard J. Criminal Justice, 34(3): 195-208. 

Roberts, J. V., and Doob, A. N. (1997). Race, ethnicity, and criminal justice in Canada, 
Crime Justice 21: 429-522. 

Sampson, R. J., and Lauritsen, J. L. (1997). Racial and ethnic disparities in crime and 
criminal justice in the United States, in Ethnicity, Crime, and Immigration: Compar¬ 
ative and Cross-National Perspectives, Tonry, M. ed., Chicago, Chicago University 
Press. 

Sanders, J., and Hamilton, V. L. (1992). Legal cultures and punishment repertoires in 
Japan, Russia, and the United States, Law Society Rev. 26(1): 117-138. 

Savelsberg, J. J. (1995). Crime, inequality and justice in Eastern Europe, in Crime and 
Inequality, Hagan, J., and Peterson, R. D. eds., Standford University Press, Stan¬ 
ford, CA. 

Schneider, H. J. (1992). Crime and its control in Japan and in the Federal Republic of 
Germany, Int. J. Offender Ther., 36(4): 307-321. 

Shelley, L. (1996). Policing Soviet Society, Routledge, New York. 

Sheptycki, J. W. E. (1995). Transnational policing and the makings of a modem state. 
Br. J. Criminol. 35: 613-635. 

Sheptycki, J. W. E. (1996). Law enforcement, justice and democracy in the transnational 
arena, Int. J. Sociol. Law 24(1): 61-75. 

Sillaste, G. (1996). The drug situation in Russia and other CIS states. Drugs: Educ. Prev. 
Policy 3(1): 17-20. 



68 


Deflem and Swygart 


Steinhoff, P. G. (1993). Pursuing the Japanese police, Law Soc. Rev. 27(4): 827-850. 

Steytler, N. (1991). Democratizing the criminal justice system in South-Africa, Social 
Justice 18(1/2): 141-153. 

Taylor, I. (1991). Big crime: The international drug trade, Social Studies Rev. 6(3): 121 — 
124. 

Terrill, R. J. (1997) World Criminal Justice Systems, 3rd ed., Anderson Publishing, Cincin¬ 
nati. 

Thompson, B., and Potter, G. (1997). Governmental corruption in Africa: Sierra Leone 
as a case study. Crime, Law Social Change, 28(2): 137-154. 

Tonry, M. (1997). Introduction, in Ethnicity, Crime, and Immigration: Comparative and 
Cross-National Perspectives, Tonry, M. ed., Chicago University Press, Chicago. 

Toumier, P. (1997). Nationality, crime, and criminal justice in France, in Ethnicity. Crime, 
and Immigration: Comparative and Cross-National Perspectives, Tonry, M. ed., 
Chicago, Chicago University Press. 

Tsuda, M. (1997). Human rights problems of foreigners in Japan’s criminal justice system, 
Migration World Mag. 25(1/2): 22-25. 

Vagg, J. (1993). Context and linkage: Reflections on comparative research and ‘interna¬ 
tionalism’ in criminology, Br. J. Criminol. 33(4): 541-554. 

Vagg, J. (1994). Prison Systems: A Comparative Study of Accountability in England, 
France, Germany, and the Netherlands, Oxford University Press, New York. 

Vaughn, M. S., Huang, F. F. Y„ and Ramirez, C. R. (1995). Drug-abuse and anti-drug 
policy in Japan: Past history and future directions, Br. J. Criminol. 35(4): 491— 
524. 

Vidmar, N. (1996). Pretrial prejudice in Canada: A comparative perspective on the crimi¬ 
nal jury, Judicature 79(5): 249-255. 

Westermann, T. D., and Burfeind, J. W. (1991). Crime and Justice in Two Societies: Japan 
and the United States, Brooks/Cole Publishing, Pacific Grove, CA. 

Zedner, L. (1995a). In pursuit of the vernacular: Comparing law and order discourse in 
Britain and Germany, Social Legal Studies, 4(4): 517-534. 

Zedner, L. (1995b). Comparative research in criminal justice, in Contemporary Issues in 
Criminology, Noaks, L. Maguire, M. and Levi, M. eds., University of Wales Press, 
Cardiff, Wales. 

Zvekic, U. (1996). The international crime (victim) survey: Issues of comparative advan¬ 
tages and disadvantages, Int. Criminal Justice Rev. 6: 1-21. 



5 

Community Policing: Past, Present, 
and Future 

W. T. Jordan and Mary Ann Zager 

Florida Gulf Coast University, Fort Myers, Florida 


As the 21st century opens, law enforcement administrators must struggle 
with the role redefinition of law enforcement agencies to community policing. 
This “new paradigm” has demonstrably grown into the conceptual framework 
for characterizing progressive policing today. It brings a mix of ideas, new and 
old, along with new and resurrected strategies and programs. Police agencies, 
and the communities that they serve, are faced with a plethora of management 
strategies, training, and programs that must be sorted and sifted as they establish 
the appropriate direction for the agency. 

This new philosophy of policing encourages members of the community to 
support and/or shape local law enforcement and crime prevention. It has benefited 
conceptually from the input of practitioners, administrators, scholars, and citi¬ 
zens. Unfortunately, the lack of more limited “ownership” of the term has al¬ 
lowed the concept to become frayed with ambiguity. Its parameters are so broad 
or flexible as to have little meaning. Although we have definitions of community 
policing, there are no empirical benchmarks that can be used to invalidate claims 
of community policing. In essence, the existence of community policing in a 
given case cannot be falsified. 

In order to gain the most from community policing, the local law enforce¬ 
ment administrator, government official, and interested citizen must move beyond 
community policing terminology and define much more specifically the desired 
character, priorities, and mission of their respective agencies. Not to do so is to 
embrace little beyond rhetoric. However, agencies that embrace the philosophy 
of community policing embrace the potential to change the nature of policing in 
our society so that it becomes integrated into the social fabric rather than apart 


69 



70 


Jordan and Zager 


from it. As an aid to future police administrators, this chapter will discuss what 
has been done in community policing, and what advancements have been called 
for. 


I. A BRIEF HISTORY OF POLICING IN THE 
UNITED STATES 

A. The Reform Movement: Police as Professionals 

Policing in the American colonies followed the traditional model of England: 
politically appointed sheriffs and constables took charge of investigations and 
held lawbreakers for trial. Citizens were expected to participate in policing activi¬ 
ties as needed by raising the hue and cry, standing watch, and joining in man¬ 
hunts. Frontier areas tended to rely less on formal law enforcement officers and 
more on vigilante justice (Walker, 1999). 

As policing modernized, standing, paid contingents of officers were created 
in the larger cities during the mid-1800s (Walker, 1999). This earliest period of 
vocational policing continued through the turn of the century. During this period, 
individual officers spent most of their time on foot patrol in a single neighbor¬ 
hood. They settled minor disputes and responded to property crime, with little 
time spent on serious crime (Walker, 1999: 25). This temporal and physical close¬ 
ness of officers and citizens led to a presumed intimate knowledge of their com¬ 
munities that many current commentators hope to emulate through “community- 
oriented policing.” However, the reality of this earlier era was much different 
in some ways than the ideal that modern law enforcement agencies strive for. 

During this period, referred to as the political era by Kelling and Moore 
(1988), officers did have close relations with some citizens, and the police did 
perform many community service activities. These early officers functioned to 
maintain order, and were a familiar presence in the neighborhood. Unfortunately, 
as police scholar Samuel Walker (1999) notes, they were often untrained political 
appointees controlled by the dominant political interests and political machines 
in the area. They did not have close bonds with all citizens, but maintained order 
through intimidation. In fact, a 1931 Wickersham Commission report on law¬ 
lessness in law enforcement found that excessive force and unlawful detention 
were used routinely by the police (Walker, 1999:32). At this time, many officers 
accepted bribes to overlook criminal activity; drinking on duty was prevalent; 
and the public (especially juvenile gangs) often displayed open hostility toward 
police. In general, officers were an integral part of the community, but were not 
particularly respected by community members. 

The movement to professionalize the police was underway by the 1920s, 
but changes in police values would spread slowly. The reform era (Kelling and 
Moore, 1988) witnessed both internal and external attempts to address problems 



Community Policing: Past, Present, and Future 


71 


in policing. The ideal of professionalizing the police created a demand for strong, 
nonpolitical managers who would use scientific management skills to administer 
nonpartisan public service. This era of policing would continue well into the 
second half of the 20th Century. 

August Vollmer (Berkeley, California’s police chief from 1905 to 1932) 
was instrumental in the early professionalism movement. By developing stringent 
hiring standards, advocating higher education for officers, and organizing the 
first college-level police science courses, he made great strides in defining police 
reform. Many of these reform ideas were included in the Wickersham report that 
he coauthored (Monroe and Garrett, 1931). He devoted his career (as did several 
of his students) to addressing the problems identified in that report (Walker 1999). 

Richard Sylvester (superintendent of Washington, D.C.’s police force from 
1898 to 1915) used his role as president of the newly created International Associ¬ 
ation of Chiefs of Police (IACP) to advocate police reform on a national level. 
Later, O.W. Wilson (one of Vollmer’s students) carried the banner of reform as 
the Police Chief in Wichita, Kansas, as Dean of the School of Criminology at the 
University of California, Berkeley, and as the Police Superintendent in Chicago 
(Walker, 1999). Principles of the reform movement were specified in the IACP’s 
Law Enforcement Code of Ethics. It was designed to make police more aware 
of their own actions, stressed a standard operating procedure based on equal 
and lawful treatment of all citizens, including those accused of criminal activity 
(Goldstein, 1990). 

Unfortunately, professionalization did not progress unimpeded. Inhibitors 
include structural changes in policing, as well as societal changes that exacerbated 
problems facing the reform movement. Moreover, the practice of policing was 
increasingly reactive. As the process of reporting was eased by technology, the 
police function was defined to a much greater extent by citizen reports. Police 
administration focused on public relations and efficient responses to calls for 
service. 

As automobiles became prevalent, the foot patrol became less common. 
Patrol cars allowed police to keep up with criminals, who were often in cars, but 
took officers off the street, which decreased their connection with the community. 
The lack of informal interaction with citizens changed the image of the police 
officer to that of a stranger. 

During the 1960s, the goal of good police-community relationships thrived 
in select circles, but the reality was that officers remained isolated from the com¬ 
munity. From 1955 to 1969, the National Institute on Police and Community 
Relations conducted seminars designed to enhance police-citizen relations. The 
goals of the Institute included enhancing cooperation between police and other 
agencies in the criminal justice system; encouraging partnerships, communica¬ 
tion, and mutual understanding between the police and the community; improving 
understanding of police-minority relations; strengthening equal protection for 



72 


Jordan and Zager 


all citizens; and promoting the administration of justice as a total community 
responsibility (Greene, 1989). A 1964 report from the IACP indicated that the 
success of the annual institutes was limited: fewer than one-third of the depart¬ 
ments surveyed had formalized police-community relations programs (all depart¬ 
ments in the sample were in cities of 30,000 or more residents). In addition, most 
were experiencing citizen unrest, complaints of brutality, or accusations of unfair 
treatment of minorities (Greene, 1989). The goals of the reform movement— 
professionalism and neutrality—contributed to the emotional distance between 
the police and members of the community; this emotional distance was taking 
its toll. Unfortunately, as Radelet (1986:21) notes, program developers “pre¬ 
ferred not to be reminded that the attitudes of many people were not being 
changed.” 

The ideals of professionalism demanded a level of impartiality well charac¬ 
terized by the colloquialism, “Just the facts, ma’ am.” Administrators delegated 
community relations to a specialized police community relations unit (or officer), 
while citizens remained isolated from the decisionmaking loop. Line officers re¬ 
ceived “human relations training” that offered no contact with the public, but 
a sociologically based curriculum on race relations, religious or ethnic conflict, 
and other topics (Greene, 1989). As demonstrated by the civilian rioting in the 
1960s, this approach was not achieving the desired effect. 

One explanation for persistent difficulties with police-minority relations 
is that the positive changes developed during the reform era did not and could 
not affect all citizens equally. Williams and Murphy (1990) emphasize the effect 
of structurally defined (macrolevel) racism, including slavery, segregation, and 
discrimination on the development of policing and the role definitions associated 
with the new professionalism. In brief, a society that does not assign all individu¬ 
als equal value cannot impart equal justice or equal protection. The professional¬ 
ization movement (despite all efforts to the contrary) was biased because the 
social structure driving the movement was biased. 

Others identify microlevel influences that created racial tension. For exam¬ 
ple, the close association between police and local residents led to severe treat¬ 
ment of norm violators and nonlocals at the neighborhood level, especially racial 
and ethnic minorities (Kelling and Moore, 1988). 

By the 1960s, police-citizen relations had reached crisis. Whatever the 
cause of the tension, racial relations were clearly at the core of the frequent vio¬ 
lence between police and citizens, and the Supreme Court stepped in to address 
police misconduct with several key decisions. Changes in the law greatly influ¬ 
enced police practice and policy. The exclusion of evidence obtained through 
illegal search and seizure (Mapp v. Ohio, 1961) and the mandate to inform sus¬ 
pects of their rights before interrogation (Miranda v. Arizona, 1966) were viewed 
by many as police limitations that reduced officers’ ability to fight crime (Walker, 
1999). Civil rights activists were bringing suit against police on the basis of 



Community Policing: Past, Present, and Future 


73 


racial discrimination and brutality nationwide. Police were responding to greater 
tensions in black communities with disproportionate use of deadly force. The 
culmination of these forces was a series of riots in the mid-1960s (Walker, 1999). 

Given the pressures fragmenting the social fabric of the United States, it is 
questionable whether any programs could have avoided the appearance of failure 
during this period. Certainly, superficial public relations programs were no longer 
a viable option, due to the political and social events of the 1960s together with 
the growth of black political power in the cities (Manning, 1991). The 1967 
President’s Commission on Law Enforcement and Administration of Justice’s 
report (discussed below) was an extension of societal changes (most notably, the 
civil rights movement) that set the stage for more equitable treatment of citizens 
by police (Williams and Murphy, 1990). 

B. Federal Intervention 

In 1967, the President’s Commission on Law Enforcement and Administration 
of Justice, reacting to the crisis, called for a strengthening of the relationship 
between the police and the community. The commission clearly identified this 
“community relations” as substantively different from “public relations,” dis¬ 
missing the effectiveness of simply presenting a positive image of police, and 
emphasizing the need for an interactive working relationship with the public. 
This distinction has become a consistent theme in police-community relations 
literature encouraging lasting relationships between the police and citizens (May- 
hall, 1985; Radelet and Carter, 1994). While previous efforts to strengthen rela¬ 
tions were largely based on one-way transmission of information (from the police 
to the community), this marked a change to programs designed to empower com¬ 
munity members to participate actively in crime prevention and self-protection 
programs (Greene, 1989). However, as with the reform era, the community era 
spread slowly in the face of persistent reluctance to change. 

The theory of community policing did not suddenly arrive on the scene to 
be implemented en bloc (Carter and Radelet, 1999). Rather it is an evolving 
idea that has profited from police officers, administrators, and scholars amidst 
particular social and political circumstances. Their contributions are rendered 
through a painfully slow, iterative process of formation, debate, implementation, 
research, and further formation. In a sense, this process was given a needed push 
by the federal government through commission reports and federal funding for 
law enforcement education and research. 

The President’s Commission on Law Enforcement and Administration of 
Justice made numerous recommendations for American policing. Darrel Stephens 
notes that the Commission produced the single most influential document to af¬ 
fect American policing (Stephens, 1999). The Commission’s report. Task Force 
Report: The Police (1967), contained recommendations for increased training 



74 


Jordan and Zager 


and education, improved hiring and personnel practices, and revised management 
and practices. Subsequent to the Commission’s findings, the 1968 Omnibus 
Crime Control and Safe Street’s Act became a cornerstone for the evolution in 
policing and police doctrine. 

The 1968 federal crime legislation set the stage for subsequent crime acts 
(e.g., the Crime Control Act of 1986 and the very influential 1994 Crime Bill) 
that would increase the influence of the federal government in state and local 
police policy directions. Mechanisms for funneling federal dollars into improving 
local policing were created. The Law Enforcement Assistance Administration 
(LEAA) provided federal assistance for improving training and equipment. 

Effects of the Law Enforcement Education Program (LEEP) on policing 
cannot be overemphasized. LEEP provided funds for police officers’ postsecond¬ 
ary education and essentially funded the development of many criminal justice 
and police-science programs around the country. This new educational infrastruc¬ 
ture helped support educational expectations for police as well as providing a 
foundation for critical analysis and research in law enforcement. 

Many officers now in senior leadership positions initially attended college 
with LEEP support. Although many of them have retired, the current generation 
of police administrators has benefited from the college programs originally cre¬ 
ated through federal funding and by working under the LEEP-educated genera¬ 
tion. 

Heightened suspicion of traditional assumptions about police operations, 
federal funding for police research, and a growing cadre of police scholars com¬ 
bined to produce the early research on which current community policing is 
grounded. The Kansas City Preventive Patrol Experiment (Kelling et al., 1974) 
has become the touchstone of applied research in law enforcement. It documented 
the lack of effect on crime by random patrol, suggesting that officers might be 
tasked more productively. It also suggested that response times were associated 
with crime reductions in only a narrow set of crimes. Yet the Kansas City experi¬ 
ment’s importance extends beyond its findings. As the model of quasiexperimen- 
tal applied research in policing, it has supported much of the police research that 
followed. 


II. THE DEVELOPMENT OF COMMUNITY POLICING 
A. Research Roots of Community Policing 

Concerns about the relationship between the police and the community were a 
driving force in the development of community policing, and remain a major 
focus of police administrators (Greene, 1989). These concerns developed from 
research in the 1970s and 1980s that identified citizens as key players in solving 
crimes (Rosenbaum and Lurigio, 1994). Line officers’ frustrations at being iso- 



Community Policing: Past, Present, and Future 


75 


lated from the decisionmaking process also influenced policy development 
(Greene, 1989). Early explorations in community-oriented policing include the 
use of one-officer patrols, team policing, a return to foot patrols, experiments in 
fear reduction, and problem-oriented policing. 

One study that strongly influenced policing policy was a comparison of 
one- and two-officer patrols in San Diego (Boydstun et al., 1977). An examina¬ 
tion of administrative concerns (e.g., cost; administrative duties; efficiency mea¬ 
sures such as number of calls handled per shift, response time, number of ar¬ 
rests; etc.) indicated that one-officer patrols were clearly more economical and 
at least as efficient as two-officer patrols. Officer safety, a critical concern for 
administrators and officers alike, was also greater for one-officer patrols (Carter, 
1990). 

Carter and Radelet (1999) provide a synopsis of several research areas that 
followed on the heels of the Kansas City study and that continued to break down 
traditional assumptions. These projects demonstrated the efficacy and safety of 
one-person versus two-person patrol units, demonstrated the feasibility of pri¬ 
oritizing calls, providing alternative responses to calls for service, and reducing 
the number of calls that required a patrol officer’s response. 

By empirically demonstrating that traditional police activities did not live 
up to their billing, these early research projects signaled a policing landscape 
more amenable to experimental innovations that followed. Major innovations 
that contributed to community policing include team policing, foot patrol, fear 
reduction, and problem-oriented policing. 

1. Team Policing 

Early attempts to address problems in policing related to the isolation of line 
officers, administration, and the community from each other resulted in the team 
policing approach. This approach focused on forming decentralized units of gen¬ 
eralists; officers who could perform patrol and other duties (including administra¬ 
tive duties) (Carter, 1990; see Sherman et al., 1973). Green (1989) notes that this 
alternative to the classic police bureaucracy was designed to enhance community 
relations, officer job satisfaction, and tactical responses to crime, and was initiated 
broadly in the late 1960s. Unfortunately, this approach was short-lived. Within 
departments, there was resistance on the part of middle managers (sergeants and 
lieutenants) who believed that the additional power given to line officers was 
taken from them. Line officers themselves encountered obstacles with the new 
method: these officers’ policing style did not change to utilize their enhanced 
autonomy and responsibility. This may be have been due to a lack of training in 
the new assignment (Greene, 1989). Although the team policing experiments 
were widely regarded as failures, some of the ideas of team policing were not 
abandoned, but re-emerged in the form of foot patrols. 



76 


Jordan and Zager 


2. Foot Patrol 

Foot patrol research emphasizes the heart of community policing strategy: devel¬ 
oping a reciprocal relationship between the police and the community, with both 
parties influencing the dialogue. Police, of course, strive to maximize public 
safety, but the definition of public safety, from a community-policing perspective, 
cannot rely solely on police perceptions. The Police Foundation’s experiment 
with foot patrol (Kelling et al., 1981; see also Trojanowicz, 1982) established 
that these patrols do not reduce crime rates, but do increase citizen satisfaction 
and reduce fear of crime. 

At first, these results seem to indicate that the public does not really know 
what works, which argues for more autonomy on the part of police administration 
and less input from the public. Flowever, the order-maintenance model of com¬ 
munity policing (discussed below) emphasizes the importance of community sat¬ 
isfaction at all levels. The public’s fear of crime is related not only to victimi¬ 
zation but also to disturbance, or disorder. From the public’s perspective, foot 
patrols lower perceived threat (in the general sense) more than traditional vehicle 
patrols (Kelling and Wilson, 1982). 

One of the most commonly cited examples of community policing is the 
Neighborhood Foot Patrol Program (NFPP) experiment begun in Flint, Michigan, 
in 1979. The NFPP was designed to combat the problem of alienation between 
officers and citizens, to increase citizen involvement in crime prevention, and to 
develop more comprehensive neighborhood organization and services. (Troja¬ 
nowicz and Bucqueroux, 1990). Alternative patrol strategies utilizing foot patrol, 
bike patrol, and horse patrol among others that bring the police into closer contact 
with citizens are now used extensively as part of community policing. 

3. Fear Reduction 

Attempts at fear reduction assumed that citizens who feel safer are more likely 
to interact with their neighborhood and be active in public areas, thus reducing 
crime by their presence. Fear-reduction experiments (Pate et al., 1986) demon¬ 
strated that citizens’ fears could be alleviated to some extent and that perceptions 
of the police could be changed. Strategies used in the fear-reduction studies (such 
as newsletters, substations, community organizing, and directed patrols) have 
become stock elements in community-oriented policing. 

4. Problem-Oriented Policing 

Goldstein (1979) first defined problem-oriented policing (POP) in an attempt to 
make the police more effective by providing an operational framework for offi¬ 
cers that encouraged them to see calls for service as signals of underlying prob¬ 
lems. POP proposed that officers should evaluate and solve the long-term problem 



Community Policing: Past, Present, and Future 


77 


as well as reacting to the immediate situation. The operational process of POP 
was refined in an early experiment in Newport News, Virginia (Eck and Spelman, 
1987). Although we note elsewhere that problem-oriented policing is conceptu¬ 
ally distinct from community policing, POP has become an integral element of 
community policing. 


B. Growth and Prevalence of Community Policing 

In the mid-1980s, community policing suddenly became a priority topic in police 
research. As Wycoff (1991) points out, “In 1985, there were few references to 
it ... in 1987 entire conferences were devoted to it.” Since that time, police 
agencies nationwide have begun community policing initiatives. 

Although we are not sure precisely how the growth curve appears, it almost 
certainly has a steep slope. The 1993 survey by the Police Foundation found that 
19% of agencies had implemented community policing and another 27% were 
in the process of planning or implementation (Wycoff, 1994). By 1997, 76% 
of police agencies with over 100 employees had full-time community policing 
personnel (Reaves and Goldberg, 1999). 

The growth of community policing has been supported and documented 
with numerous publications. A quick check of Books in Print indicates an explo¬ 
sion of books with “community policing” or “community-oriented policing” 
in their titles in the past few years. 1 One book is listed as having been published 
prior to 1990. Between 1990 and 1995, 13 titles are listed. Between 1996 and 
1999, 24 titles are listed (Books In Print, 1999). 

The vitality of community policing as a principal value in US policing 
is evidenced by several recently created organizations, including the Office of 
Community Oriented Policing Services that provides federal monetary and tech¬ 
nical support to local agencies for community policing. The Justice Department 
also funds the Community Policing Consortium, which includes the International 
Association of Chiefs of Police, the National Sheriff’s Association, the National 
Organization of Black Law Enforcement Executives, the Police Executive Re¬ 
search Forum, and the Police Foundation. 

Justice Department funding has probably been a key element in the adop¬ 
tion of community policing so quickly by so many agencies. The 1994 Crime 
Act provided for substantial federal support of community policing initiatives. 
By mid-1999, the Office of Community Oriented Policing Services reported pro- 


Some books on the subject may not have included the term in their titles, nor is this a comprehensive 
list of published titles, but it does provide us with a reasonable picture of the growth of book 
publications in the field. 


78 


Jordan and Zager 


viding over $5.2 billion in grants for community policing projects to more than 
11,300 communities (U. S. Department of Justice, May 6, 1999). 


III. THE CURRENT STATE OF COMMUNITY POLICING 
A. Definitions of Community Policing 

Kelling and Coles describe community policing as “nothing less than a new 
paradigm, in which a focus on crime prevention replaces the old reactive policing 
model” (1996: 158). Eck and Rosenbaum (1994) likewise label it the “new or¬ 
thodoxy.” Unfortunately for the police administrator, officer, or citizen who is 
interested in implementing community policing,definitions of community 
policing tend to be vague or encompass a multitude of ideas. For example, 
community policing may be defined as ‘ ‘a general concept that stresses a closer 
working relationship between police and the citizens they serve” or a “closer, 
two-way relationship between police and their communities” (Wycoff and 
Skogan, 1993: 3). 

A recent federally funded survey of community policing strategies point¬ 
edly avoided attempting to determine whether some agencies did or did not repre¬ 
sent ‘ ‘real’ ’ community policing. This was a simple task, since the only definition 
applied was that ‘ ‘community policing seeks to increase interaction between po¬ 
lice and citizens for the purpose of improving public safety and the quality of life 
in the community” (Wycoff, 1994:1). Currently, the Justice Department defines 
community policing as 

a policing philosophy that promotes and supports organizational strategies 
to address the causes and reduce the fear of crime and social disorder through 
problem solving tactics and community-police partnerships. A fundamental 
shift from traditional, reactive policing, community policing stresses the pre¬ 
vention of crime before it occurs. Community policing is an integral part of 
combating crime and improving the quality of life in the nation’s cities, towns 
and rural areas. Core components of community policing include partnering 
with the community; problem solving; and transforming policing agencies 
to support and empower frontline officers, decentralize command and en¬ 
courage innovative problem solving (U.S. Department of Justice, March 25, 

1999). 

In the literature there seems to be some agreement that the two basic parts 
of community policing are community partnership and problemsolving (e.g., 
Community Policing Consortium, 1994; Wycoff, 1994). Although “problem-ori¬ 
ented policing” (POP) is sometimes used interchangeably with “community- 
oriented policing,’ ’ (COP), they are not conceptually the same. COP has evolved 
to include POP according to most commentators, but problem-oriented policing 



Community Policing: Past, Present, and Future 


79 


need not be driven by community input or concerns. The POP approach can be 
used independently of community policing intent. One of the most frequently 
cited early works on problem-oriented policing, and its earliest test as a depart¬ 
ment-wide strategy, defines POP as “a department-wide strategy aimed at solving 
persistent community problems. Police identify, analyze, and respond to the un¬ 
derlying circumstances that create incidents” (Eck and Spelman, 1987; emphasis 
added). 

In essence, agencies that embrace community policing will maximize com¬ 
munication with the community as they begin to view citizens as customers or 
clients whose views are essential for maintaining good service. Rather than view¬ 
ing citizens’ calls for service as the primary focus of the police response, COP 
views “problems” as the primary focus of police work. Problem-oriented polic¬ 
ing began with Herman Goldstein’s classic critique of policing (Goldstein, 1979; 
see also Goldstein, 1990) in which he called for a focus on the end products of 
police work. He did not restrict the definition of problems to criminal complaints. 
He referred instead to ‘ ‘the incredibly broad range of troublesome situations that 
prompt citizens to turn to the police” (Goldstein, 1979). 

Paying attention to citizens’ views and complaints provides the police with 
information necessary to develop long-term solutions to problems rather than 
only short-term responses. To facilitate a closer, more personal relationship be¬ 
tween officers and citizens, a number of activities and practices have been em¬ 
ployed. These are discussed below. 

B. Two Theoretical Models of Community Policing 

There are two dominant models of community policing; one model focuses on 
order maintenance, the other on community service. The aggressive order-mainte¬ 
nance approach proffered by Wilson and Kelling (1982,1989) suggests that struc¬ 
tural order will ensure social order. In this approach, police (and, where appro¬ 
priate, community members) take an aggressive approach to stopping unknown 
people and enforcing order. The focused approach begins with identifying nui¬ 
sances, or sources of disorder, and requires developing (through the collaboration 
of police, community members, government, and private agencies) tactics to ad¬ 
dress those specific problems. 

The second dominant model focuses on community service. Proponents of 
this model, including Trojanowicz and Bucqueroux (1990), present community 
policing as an exercise in problemsolving that requires administrative reorganiza¬ 
tion as well as a change in philosophy, and in which the problems are largely 
defined by the community rather than law enforcement officers or administrators. 

Wilson and Kelling’s (1982) “Broken Windows” article introduces their 
order-maintenance strategy. This problem-oriented policing approach focuses on 
making communities places where law-abiding citizens have control, thus reduc- 



80 


Jordan and Zager 


ing the opportunity to commit crimes or create disorder. Formal and informal 
social controls (police and citizens) maintain order by focusing on both the envi¬ 
ronment and the behavior of citizens. Based on a general sense of safety and 
comfort in the neighborhood, this strategy empowers law-abiding citizens and 
alienates law violators (Wilson and Kelling, 1982). In a later article, Wilson 
and Kelling (1989) provide several examples of problem-oriented policing tactics 
that enlisted individuals who were found to be disturbing order in maintenance 
activities, effectively converting them from law violators to law-abiding agents 
of social control. 

Maintaining order does present a problem: How do we ensure that order 
is maintained equitably, and that public order laws are not enforced differentially, 
bringing bias back into a system that has struggled to remove it? One answer is 
to continue to train officers against bias based on race, ethnicity, or any other 
politically incorrect concept. Another is to encourage citizens to establish their 
own order-maintenance protocols. Encouraging citizens to participate actively in 
order maintenance (not vigilantism, but social control) gets at the core concept 
of community policing: community/police interaction. In this scenario, the police 
teach citizens how to help themselves by working with law enforcement agencies. 

The order-maintenance approach to community policing is substantively 
different from the community service model proffered by Trojanowicz and Buc- 
queroux (1990). Both models encourage citizen participation in the process of 
community policing and rely on a close working relationship between the com¬ 
munity and the police. Both models, of course, address problemsolving. How¬ 
ever, Trojanowicz and Bucqueroux stress (as the last of their 10 principles of 
community policing) that ‘ ‘police cannot impose order on the community from 
outside, but that people must be encouraged to think of the police as a resource” 
(1990:xv). 

In this model the community is primarily responsible for identifying and 
prioritizing concerns as well as maintaining a high quality of life in the neighbor¬ 
hood. Trojanowicz and Bucqueroux (1990) stress that this enhanced problemsolv¬ 
ing model requires significant change in administrative policy. The intense focus 
on citizen involvement and cooperation produces a model of community/citizen 
empowerment, and radically changes the organizational structure of the police 
department. Empowering citizens and line officers working in the community 
necessarily alters the traditional structure of power in policing agencies. By en¬ 
couraging line officers to take the initiative in developing trust between them¬ 
selves and citizens, working in cooperation with citizens to solve neighborhood 
problems creatively, and follow the community’s lead in identifying and prioritiz¬ 
ing problems, this model goes well outside the boundaries of the traditional chain- 
of-command approach to police organization. 

In theory, either or both of these models could be the basis for a new polic¬ 
ing paradigm. The limited implementation of these models, however, begs the 



Community Policing: Past, Present, and Future 


81 


question of how “new” the community policing paradigm is. An examination 
of the nature of community policing activities provides some insight into this 
question. 

C. Community Policing Activities 

Although community policing is not defined by a specific set of activities, certain 
practices are commonly identified with a community orientation. Table 1 lists 
activities commonly associated with community policing. The activities that ap¬ 
pear to differentiate agencies claiming to have implemented community policing 
from those that have not include citizen surveys, permanent substations, desig¬ 
nated “community” officers, foot patrol, community meetings, and training in 
problem identification and problem solving (Wycoff, 1994). These kinds of activ¬ 
ities tend to focus on meeting the objectives of the two primary components of 
community policing: community partnership and problemsolving. 

Building an enhanced relationship with the community includes increased 
communication and more personal relationships between officers and specific 
groups of people (e.g., youth and neighborhood residents). Officers tend to have 
‘ ‘permanent’ ’ beat assignments that allow them to get to know their constituents 
via alternative patrol strategies such as foot patrol. Agencies strive to free up 


Table 1 Community Policing Activities 


• Call prioritization to increase officer 
time for other activities 

• Alternative responses and reporting 
methods for calls 

• Citizen surveys to determine 
community needs and priorities and to 
evaluate police services 

• Victim assistance programs 

• Substations (permanent and mobile) 

• Designated drugfree zones 

• Police/youth programs 

• Drug education programs 

• Crime tip hotlines 

• Fixed geographic assignments for 
patrol officers 

• Designated “community” or 
“neighborhood” officers 

• Foot patrol 


Regularly scheduled meetings with 
community groups 

Training in problem identification and 
solution for officers and citizens 
Regular informational radio or 
television spots 

Training for landlords in order 
maintenance and drug reduction 
Use of regulatory and building codes to 
combat crime 

Geographic crime analysis available to 
beat officers 

Interagency cooperation in problem 
solving 

Integration of community corrections 
programs 

Integration of alternative dispute 
resolution programs 


Source: Wycoff, 1994. 



82 


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officers’ time from radio calls through the use of differential response to calls, 
to allow them blocks of time available for interaction with citizens and prob¬ 
lemsolving. Input from citizens is solicited through surveys and community 
meetings. 

Communication with citizens enhances problem identification and may be¬ 
gin a cooperative problemsolving process. Training is provided for officers and 
community members to establish a foundation in problemsolving that encom¬ 
passes not only traditional but also nontraditional law enforcement, and alterna¬ 
tives to a criminal justice response. 


IV. DOES COMMUNITY POLICING WORK? 

In his remarks at the unveiling of the 21st century crime bill. President Bill Clin¬ 
ton announced that “police chiefs, politicians and people on the street all agree 
that the most important factor [in recent reductions in violent crime] has been 
community policing” (The White House, 1999). The President is not alone in 
this belief. Anecdotal evidence for the success of community policing programs 
abounds. For example, the May/June 1999 issue of Community Policing Ex¬ 
change includes a cover story and several additional reports of successful pro¬ 
grams in which rates of violent crime have decreased since the program’s incep¬ 
tion. One currently popular program model is the police/corrections partnership, 
which may focus on juvenile or adult offenders. In this model, a team makes 
frequent home visits and establishes a presence in the community. The visits 
are intended to increase the supervision of probationers as well as to develop 
communications between the correctional supervisors and community members. 
These teams of police officers and probation or parole personnel (in one case, 
social workers are also part of the team) are reported to have reduced crime in 
Alabama, Arizona, Massachusetts, Minnesota, Virginia, and Washington state, 
among others (Lehman, 1999). 

A. What Constitutes “Success”? 

This example brings to light an important issue: defining “success.” Defining 
the success of a community policing program is as difficult as defining commu¬ 
nity policing itself. As discussed previously, the activities involved in community 
policing vary from program to program. The definition of success also varies 
by program, and is often dependent on the components of community policing 
dominant within a program. 

Decreased crime rates may seem to be the natural choice to measure effec¬ 
tiveness. For example, early experiments in community policing (such as the 
Flint, Michigan, Foot Patrol program conducted in the late 1970s and early 1980s) 



Community Policing: Past, Present, and Future 


83 


focused evaluation on crime rates. Although crime rates did decrease in Flint for 
automobile theft, assault, vandalism, criminal sexual assault, and larceny, similar 
programs in other locations did not report this type of success (Trojanowicz and 
Bucqueroux, 1990: 216). Although crime rates may be the most obvious choice 
for a measure of success, they are likely to be misleading, since they are affected 
as much by demographic trends as by policing policy (see Austin and Cohen, 
1996, for discussions of the effect of aging patterns and other spurious influences 
on crime rates). More importantly, these measures do not directly address officer 
effectiveness. 

Of more significance, perhaps, are measures of citizens’ perceptions, and 
the impact of community policing on them. In the Flint example, many citizens 
came to believe that foot patrol had reduced crime in their neighborhood, they 
felt safer as a result of the foot patrols, they were aware of the duties of the 
foot patrols, and they expressed satisfaction with the program (Trojanowicz and 
Bucqueroux, 1990: 216-217). 

Even when the measure of success is narrowed to focus on officer effective¬ 
ness, the field is broad. Appropriate outcome measures include both aggregate 
measures of the success of programs and departments and individual performance 
measures (Community Policing Consortium, 1994). 

Performance measures have traditionally included administrative measures 
of police performance, such as number of arrests, calls answered, miles driven, 
reports written, and tickets issued. While these measures are easy to collect and 
are good indicators of cost-effectiveness, they do not capture the essence of com¬ 
munity policing: the nature of police functions and the extent of services delivered 
(Carter, 1990). The nature of community-oriented policing demands that attention 
be paid to what the public expects from police, which includes tasks related to 
maintaining order and public service as well as tasks directly related to criminal 
activity (Carter, 1990). 

Wycoff (1991) suggests that performance measures better suited to evaluat¬ 
ing community policing would include measures of the extent to which police 
are listening to, and addressing, citizen concerns. These measures, Wycoff notes, 
are directly related to the espoused philosophy of community policing discussed 
previously: “the commitment to listening to citizens...and to taking seriously 
citizens’ definitions of their own problems” (1991: 105; emphasis in original). 
However, although nontraditional, qualitative measures of effectiveness, such as 
the ability to evaluate a variety of situations and make effective decisions, do 
capture the essence of community policing, they may be difficult to collect. Fur¬ 
thermore, without corresponding quantitative measures to establish the validity 
and reliability of such qualitative measures, they are almost useless in terms of 
officer evaluation (Carter, 1990). 

At the departmental level, evaluations of community policing have demon¬ 
strated mixed results. So many different components have been characterized as 



84 


Jordan and Zager 


community policing that it is difficult to provide an overall assessment of the 
effectiveness of community policing. Bayley (1994) expects that a more prag¬ 
matic approach is to examine specific programs (oriented toward community po¬ 
licing) within departments. One such type of program is the fear-reduction initia¬ 
tive. 


B. Early Successes 

One early experiment in fear reduction was the Citizen-Oriented Police Enforce¬ 
ment (COPE) program in Baltimore County, Maryland, which was initiated in 
1982. This program stresses community involvement on the part of the officers 
(addressing problems of disorder such as inadequate street lighting or dilapidated 
houses), and encouraged nontraditional police roles in response to citizen con¬ 
cerns (Behan, 1990). The COPE program was found to reduce “fear by 19%, 
crime by 12%, and calls for service by 11%’’ (p. 392). 

Wycoff (1991) presents an excellent summary of the empirical evidence 
related to fear reduction programs in Houston and Newark. In her summary of 
fear-reduction strategies implemented in Houston and Newark in the 1980s, Wy¬ 
coff identifies community policing programs as those in which officers are “tak¬ 
ing seriously citizens’ definitions of their own problems” (1991:105). Among 
programs that fit this definition of community policing (in Houston, the Police 
Community Station, the Citizen Contact Patrol, and the Community Organizing 
Response Team; in Newark, Coordinated Community Policing) each demon¬ 
strated empirical success by at least one measure. All four programs significantly 
reduced citizens’ perceptions of social disorder in the area; several resulted in 
reduced perceptions of property crime; half reported reduced perceptions of per¬ 
sonal crime, reduced fear of personal victimization, and improved evaluations of 
the police. The Houston Citizen Contact Patrol also reported increased citizen 
satisfaction with the area overall (Wycoff, 1991; see also Pate et al., 1986). 

More evidence regarding the effectiveness of community policing in reduc¬ 
ing fear of crime comes from the Madison, Wisconsin, Experimental Police Dis¬ 
trict (EPD) established in 1988. This prototype was designed to implement com¬ 
munity policing objectives, including decentralization and reorganization of the 
unit (Wycoff and Skogan, 1993: 20). Two measures of fear of crime (one specifi¬ 
cally measuring robbery as a problem and one an overall measure of perception 
of crime problem in the area) were reduced significantly in the experimental zone. 

In addition, the EPD also successfully improved police/community rela¬ 
tions. Four measures of police/community relations (perception of police pres¬ 
ence, attending meetings with police present, belief that police are working to 
solve problems, and belief that police address problems of concern to citizens) 
indicated improvement in the experimental zone (Wycoff and Skogan, 1993: 81). 



Community Policing: Past, Present, and Future 


85 


Calls for service were reduced by 47% in the 10 month period after the program 
was implemented (Reno, 1990: 396). 

The 72nd precinct of Brooklyn, New York, initiated the Community Patrol 
Officer Program (CPOP) in 1984, which was designed to improve police/commu¬ 
nity relations and curtail crime. Pate and Shtull’s (1993) evaluation of this pro¬ 
gram measured improved police/community relations by assessing changes in 
citizen complaints for police misconduct before and after CPOP implementation. 
The number of both complaints and allegations (there may be several allegations 
per complaint) were reduced over the course of the CPOP program, although 
they increased slightly in other precincts during the same time period (Pate and 
Shtull, 1993: 172-176). The results on crime reduction were less clear. As previ¬ 
ously discussed, crime rates can be misleading indicators of effectiveness. Some 
types of crime complaints actually increased during the program (violent felonies 
and “other” felonies, which are likely to be drug related); however, the arrests 
for those offenses also increased. It is likely that the added police presence in¬ 
creased the reporting of these crimes. 

Overall, fear reduction and improved police/community relations were the 
clearest benefits of early community policing programs. 

C. Recent Successes 

A more recent program, Chicago’s Alternative Policing Strategy (CAPS), used 
several measures of effectiveness. The most clear success was the improvement 
in the overall quality of police services (a measure of police/community rela¬ 
tions). CAPS was instituted in 1993 in five prototype districts; results were com¬ 
pared with four matching districts. The program was designed to increase citizen 
awareness of CAPS, improve perceptions of the quality of police service, and 
reduce neighborhood problems (Chicago Community Policing Evaluation Con¬ 
sortium, 1995). After 14-17 months (depending on site) no increase in program 
recognition was found. Results of the comparison of neighborhood problems var¬ 
ied widely. The most dramatic across-the-board reductions were seen in the 
neighborhoods that began with the most perceived problems. This program’s 
clearest success was in the increased overall evaluation of the quality of police 
service, which was significant in four of the five prototype districts (Chicago 
Community Policing Evaluation Consortium, 1995: 80-87). 

Community policing initiatives can affect officer behavior and attitudes. A 
key focus of the Los Angeles Police Department’s community policing initiative 
was the organization-wide change in police philosophy and activities (Greene, 
1998). The Philadelphia Housing Authority (PHA) initiative used surveys of of¬ 
ficers and residents to assess the effectiveness of community policing. The most 
notable effect was a clear change in officer’s behavior consistent with the goals 
of the program (Piquero et al., 1998). 



86 


Jordan and Zager 


Two studies funded by the National Institute of Justice (NIJ) provide sup¬ 
port for the effectiveness of community policing in changing officers’ behavior 
and citizens’ attitudes. In Indianapolis, a community policing initiative begun in 
1996 has changed the amount of time officers spend with citizens and increased 
the number of non-arrest-related contacts with citizens. Officers and citizens re¬ 
ported high levels of satisfaction with the program (NIJ, 1998). A similar initia¬ 
tive in St. Petersburg (started in 1997) also found that community policing offi¬ 
cers had increased interaction with citizens and that citizens in target areas had 
a high overall perception of the police (NIJ, 1999). 

In sum, community policing initiatives affect both officers and citizens. 
Officer behavior is likely to change to reflect the new paradigm being proffered, 
and these changes are likely to be accompanied by increased satisfaction on the 
part of both officers and citizens. 


D. Problems and Criticisms of Community Policing Today 

Criticisms of such broad definitions have led to the oft-heard retort that commu¬ 
nity policing is a “philosophy,” not a program (Illinois Criminal Justice Informa¬ 
tion Authority, 1995; Cordner, 1995). This response has largely protected the 
concept from any substantive effects of the criticisms mounted by a few writers 
(e.g., Taylor et al., 1998; Manning, 1991). Although there is some validity to the 
philosophical claims that there are no necessary components, there is a weakness 
in that no empirically based criteria of sufficiency have been established. That 
is, what measurable elements are sufficient to validate the claim of community 
policing? To date, the only measure of sufficiency appears to be the existence 
of the claim itself, and by default it appears that any newly created program or 
activity is allowable. 

Whether community policing will actually provide a powerful change agent 
within a given agency is largely dependent on the leadership within the agency 
(Peak and Glensor, 1999) because of the ambiguity in the concept. As several 
commentators have noted, the term may be used to cover practically anything 
(Bayley, 1988; Goldstein, 1993; Rosenbaum and Lurigio, 1994). Programmatic 
elements commonly associated with community policing are no guarantee that 
community policing is in place as a philosophy when the agency has no broader 
commitment to that philosophy (Illinois Criminal Justice Information Authority, 
1995). 

During the 1960s, the tension between citizens and officers was exacerbated 
with the introduction of communication technology that allowed citizens to re¬ 
quest immediate police assistance. Officers who had become foreign to the com¬ 
munity were now intruding in citizens’ personal lives, coming into their homes 
in unprecedented numbers (Walker, 1999). 



Community Policing: Past, Present, and Future 


87 


V. LESSONS LEARNED: GUIDELINES FOR 
POLICE ADMINISTRATORS 

A. Lessons in Administration Style 

Given the ambiguity of the definition and components of community policing, 
it is easy to fall into the trap of repeating community policing rhetoric but ignoring 
the more substantive changes that may be required by a new paradigm. Adminis¬ 
trators who want to initiate programs true to the philosophy of community polic¬ 
ing must be prepared to devote considerable time and resources to the design, 
implementation, and evaluation of those programs. 

The history of community policing teaches us several important lessons 
about the administration of community policing programs: True community po¬ 
licing requires redefinition of police priorities, new models of information dis¬ 
semination between police and the community, and new models of police admin¬ 
istration. These components are not effective independently; they must be 
implemented together to effect real change in the community. 

1. New Models of Administration 

The biggest challenge, and the catalyst for other necessary changes, may be the 
change in the model of administration. Prior to the advent of community policing 
in the 1980s, the administration of policing revolved around a one-way flow of 
information; from the administrator to the public, or the line officer (Greene, 
1989). The philosophy of community policing demands that this one-way, down¬ 
ward flow of both information and authority be replaced with true interaction 
between police administrators, line officers, and the community they serve. Peak 
and Glensor (1999: 55-62) refer to this in the traditional business terms of be¬ 
coming more customer-oriented, and following a consumer-based model. The 
total quality model (TQM) provides a guideline for the successful implementation 
of the community policing philosophy. TQM suggests that as line officers (or 
midlevel management in the business parallel) become more comfortable with 
supervisory roles, the decentralization of power will result in more creativity in 
addressing citizens’ complaints. As citizens begin behaving more like customers 
and less like clients, they will take a more active role in policing their neighbor¬ 
hoods, providing both support for current programs and input into future pro¬ 
grammatic needs. 

Yet active citizen participation is difficult to achieve (Grinc, 1994; Skogan, 
1995); unless both the public and line officers develop a vested interest in contrib¬ 
uting to policy decisions, community policing programs will likely produce only 
short-term results (Greene, 1989: 387). Citizen involvement, therefore, is depen¬ 
dent on the top-level administration demonstrating a willingness to share power 
and relinquish control (a critical element of the TQM is decentralization). In turn. 



88 


Jordan and Zager 


line officers must be encouraged to think creatively and meet with citizens to 
resolve community problems. This can be achieved through training and other 
demonstrations of a long-term commitment to change (Peak and Glensor, 1999: 
59-60). 

These changes in the traditional roles of police administrators and line offi¬ 
cers are necessary but not sufficient conditions for citizens’ true participation in 
policymaking. Greene (1989: 387) summarizes recent research on citizen 
involvement and identifies several characteristics of citizens (including class, 
race, bond to the community, neighborhood cohesiveness, and type of locality) 
that influence their willingness to participate in this process. 

2. New Models of Information Dissemination 

Changes in the administration of policing, however, lead to changes in the 
flow of information and the definitions of police priorities. As citizens become 
involved in policy-making, police- citizen communication becomes interaction 
rather than information dissemination that flows strictly from police to citizens 
(public relations) (Greene, 1998). 

3. New Priorities 

When citizens’ input is used in the decisionmaking model, the priorities of the 
police are being shaped by citizens. This is a distinct advance over simply using 
citizen feedback to influence the presentation of programs and policies that 
agency heads favor. 

A pleasant side effect of this process, even when only partially imple¬ 
mented, is the improvement in officer job satisfaction ratings. This phenomenon 
has been noted in several recent evaluations of community policing programs 
(Greene, 1989: 388). 

B. Lessons in Program Design and Evaluation 

Previous evaluations of community policing programs teach us important lessons 
about designing and evaluating community policing programs: programs must 
be designed so that the stated purpose is measurable and the effectiveness is 
testable; the evaluation process must be formative, to facilitate timely revisions; 
and although an initial program may be implemented on a very limited basis, 
the commitment to expanding the successful program must be strong so that the 
changes eventually become the standard. 

1. Long-Term Commitment 

Successful programs must have serious commitment from the agency, the offi¬ 
cers, and the public. Good program planning, implementation, and evaluation 



Community Policing: Past, Present, and Future 


89 


are onerous tasks, and drive most police agencies to develop community pol¬ 
icing programs on an experimental or trial basis. Implementation in small target 
areas of the community or in a few precincts in a large agency has resulted in 
small successes, but the overall success of a community program is dependent 
on the institutionalization of successful pilot programs (Rosenbaum and Lurigio, 
1994). 

Overall agency commitment is also likely to affect the commitment level 
of community policing officers. When programs are implemented on a limited 
basis, a natural division is created between those officers who are and those who 
are not involved in community policing. Although all officers are not likely to 
‘ ‘buy into’ ’ community policing philosophy, those officers who are not involved 
in the program are less likely to support community policing. Officers may be¬ 
lieve that community policing details are different from those of other officers, 
and that community policing officers do not work as hard as other officers 
(Dicker, 1998). Officers with positive perceptions of community policing are 
most likely to be drawn to these programs, but there is also evidence that all 
officer attitudes toward community policing improve over time when programs 
are implemented (Lurigio and Skogan, 1998). Thus, resistance to these programs 
is likely to diminish as pilot programs are established and receive positive evalua¬ 
tions, paving the way for more extensive implementation. 

It is vital to demonstrate commitment to the community as well as to offi¬ 
cers. Training programs may reduce citizen reluctance, but many communities 
have historical precedent for mistrust of fly-by-night governmental programs, and 
of politicians who claim to want to listen but really intend to sell their own ideas 
(Grinc, 1994). These obstacles to true citizen involvement are not overcome 
quickly, and long-term commitment is essential to meaningful citizen involve¬ 
ment. 

2. Formative Evaluation and Amenability to Revision 

As with the philosophy of community policing, the implementation and design 
of programs must be based on willingness to take risks and try new approaches, 
and the flexibility to address problems as they arise. 

The Bureau of Justice Assistance (1994: chapter 5) suggests that assess¬ 
ments of community policing programs include traditional measures of effective¬ 
ness (that measure crime and crime-related variables) as well as nontraditional 
measures such as the efficient use of resources (e.g., establishing community/ 
police partnerships, decentralizing decisionmaking, strengthening officers' bonds 
with the community, and redefining job functions to decrease levels of supervi¬ 
sion). This report also suggests that equity (in access to and distribution of police 
services and resources, and in treatment by police) is a critical component of 
evaluation. 



90 


Jordan and Zager 


Traditional assessments of effectiveness are well suited to a stagnant model 
that measures crime (and related variables) pre- and postprogram implementation. 
The nontraditional assessment measures (efficiency of resource use and equity) 
suggested are superb candidates for continual evaluation and revision of pro¬ 
grams. In fact, this report suggests that the assessment process include a reeval¬ 
uation of the measures used for assessment (Bureau of Justice Assistance, 1994: 
chapter 5). 

Alpert and Moore (1998: 216-221) also provide new concepts for the eval¬ 
uation of community policing that are strongly related to its philosophical compo¬ 
nents. Reviewing the literature on community policing, they call for assessment 
of the strength of the police relationship with the community, the extent to which 
police and citizens work together to achieve common goals, and police respon¬ 
siveness to the perceived needs of citizens. 

3. Clear Measures of Purpose and Effectiveness, Strong 
Research Design 

Successful evaluation depends on clear identification of program’s purpose and 
goals, as well as identification of appropriate measures of effectiveness. Brady’s 
(1996, 1997) two-part series on “Measuring what matters” provides an excellent 
model for defining these critical concepts prior to program implementation. Eval¬ 
uations of community policing will almost universally measure crime, but it is 
also important to remember that a multitude of factors other than police program¬ 
ming affect crime reporting and clearance rates. Nontraditional outcomes such 
as those discussed above may require unique or unusual measures. 

Skogan presents a model for identifying critical measures in an evaluation. 
His ‘ ’logic model’ ’ includes the intervention (or treatment), the context (or cir¬ 
cumstances) surrounding the intervention, the mechanism (or process) through 
which the program should affect the outcome, and the outcome or anticipated 
results (impact) of the program (cited in Brady, 1996: 5). By following the pur¬ 
pose and goals of the program through to the measurement design, this “logic 
model” ensures that all pertinent variables will be identified, and their measure¬ 
ment operationalized, before the program is implemented. 

The context, or environment, may be the most difficult component of the 
logic model. In addition to measures of the treatment and outcome variables, 
potential spurious influences must be controlled for through design or measure¬ 
ment. In particular, evaluations must be carefully designed to avoid the problem 
of having to explain apparent increases in crime rates after programming is imple¬ 
mented. True experiments or quasiexperimental designs will minimize error from 
unmeasured influences (Rossi and Freeman, 1993: 240-249). When these designs 
are not practical or ethical, known potential spurious influences should be mea¬ 
sured so that the magnitude of their influence can be assessed. 

Any evaluation of policing must address the current social and economic 



Community Policing: Past, Present, and Future 


91 


conditions, and their impact on policing (Cardarelli and McDevitt, 1995: 232; 
see also Peak and Glensor, 1999). Characteristics of the citizens in the target 
community, as well as local and national political and economic climates, affect 
policing policies in strategic ways. Cardarelli and McDevitt provide several co¬ 
gent examples of forces external to the police department that have an impact on 
the design and success of policing programs, including shifts in the race/ethnicity, 
age, and income of citizens; legislative mandates such as those involving domestic 
violence and hate crimes; and budgetary constraints (1995: 233-234). 

In conclusion, the successful design and implementation of community po¬ 
licing programs is highly dependent on two basic criteria: the police administra¬ 
tor’s willingness to think “outside of the box” in terms of organizational struc¬ 
ture, and a serious long-term commitment to community policing that is 
demonstrated by thoughtful evaluation of the entire process, with frequent re- 
evaluation and revision when necessary. 

REFERENCES 

Alpert, G. P., and Moore, M. H. (1998). Measuring police performance in the new para¬ 
digm of policing, in Community Policing: Contemporary readings , Alpert, G. P., 
and Piquero, A., eds., Waveland Press, Prospect Heights, IL. 

Austin, J., and Cohen, R. L. (1996). Are crime rates declining? U.S. Department of Justice, 
Washington, D.C., NCJ number 173550. 

Bayley, D. H. (1988). Community Policing: A Report from the Devil’s Advocate, in Com¬ 
munity Policing: Rhetoric or Reality, Greene, J. R. and Mastrofski, S. D., eds., 
Praeger, New York. 

Bayley, D. H. (1994). International differences in community policing, in The Challenge of 
Community Policing: Testing the Promises, Rosenbaum, D. P., ed.. Sage, Thousand 
Oaks, CA. 

Behan, C. J. (1990). Community close-up: Baltimore County Police Department; Towson, 
Maryland, in Community Policing: A Contemporary Perspective, Trojanowicz, R., 
and Bucqueroux, B. eds., Anderson Publishing, Cincinnati, OH. 

Books in Print (1999). R. R. Bowker. [On-line database]. Available via FirstSearch: 

<http://firstsearch.altip.oclc.org/.> Accessed August 18, 1999. 

Boydstun, J. E., Sherry, M. E., and Moelter, N. P, (1977). Police Staffing in San Diego: 

One- or Two-Officer Units, The Police Foundation, Washington, D.C. 

Brady, T. V. (1996). Measuring what matters part one: Measures of crime, fear, and disor¬ 
der, Natl. Inst. Justice, Dec. 1. 

Brady, T. V. (1997). Measuring what matters part two: Developing measures of what the 
police do, Natl. Inst. Justice: Research in Action : 1. 

Bureau of Justice Assistance. (1994). Understanding Community Policing: A Frame¬ 
work for Action, accessed 2/15/97 from http://www.communitypolicing.org/com- 
pubs.html. 

Cardarelli, A. P., and McDevitt, J. (1995). Toward a conceptual framework for evaluating 
community policing, in Issues in Community Policing, Kratcoski, P. C., and Dukes, 
D. eds., Anderson Publishing Company, Cincinnati, OH. 



92 


Jordan and Zager 


Carter, D. L. (1990). Methods and measures, in Community Policing: A Contemporary 
Perspective , Trojanowicz, R., and Bucqueroux, B., eds., Anderson Publishing, Cin¬ 
cinnati, OH. 

Carter, D. L., and Radelet, L. A. (1999). Police and the Community, 6th ed., Prentice 
Hall, Upper Saddle River, NJ. 

Chicago Community Policing Evaluation Consortium (1995). Community Policing in Chi¬ 
cago, Year Two: An Interim Report, Illinois Criminal Justice Information Authority, 
Chicago, IL. 

Community Policing Consortium (1994). Understanding Community Policing: A Frame¬ 
work for Action, Bureau of Justice Assistance, Washington, D.C. 

Cordner, G. W. (1995). Community Policing: Elements and Effects. Police Forum, 5(3): 
1 - 8 . 

Dicker, T. J. (1998). Tension on the thin blue line: Police officer resistance to community- 
oriented policing, Am. J. Criminal Justice 23(1): 59. 

Eck, J. E., and Spelman, W. (1987). Who ya gonna call? The police as problem-busters, 
Crime Delinquency 33: 31. 

Eck, J. E., and Rosenbaum, D. P. (1994). “The New Police Order: Effectiveness, Equity, 
and Efficiency in Community Policing.” In The Challenges of Community Policing: 
Testing the Promises, Rosenbaum, D. P. ed. Thousand Oaks, CA: Sage 

Goldstein, H. (1979). Improving policing: A problem-oriented approach. Crime Delin¬ 
quency 25: 236. 

Goldstein, H. (1990). Problem-Oriented Policing, McGraw-Hill, New York. 

Goldstein, H. (1993). The New Policing: Confronting Complexity. National Institute of 
Justice Research in Brief, NCJ#145157, Washington, D.C. 

Greene, J. R. (1989). Police and community relations: Where have we been and where 
are we going?, in Critical Issues in Policing: Contemporaty Readings, Dunham, 
R. G., and Alpert, G. P., eds., Waveland Press, Prospect Heights, IL. 

Greene, J. R. (1998). The road to community policing in Los Angeles: A case study, in 
Community Policing: Contemporary Readings, Alpert, G. P., and Piquero, A. eds., 
Waveland Press, Prospect Heights, IL. 

Grinc, R. M. (1994). “Angels in marble”: Problems in stimulating community involve¬ 
ment in community policing, Crime Delinquency 40(3): 437. 

Illinois Criminal Justice Information Authority. (1995). Community Policing for Law En¬ 
forcement Managers. Illinois Criminal Justice Information Authority, Chicago, IL. 

Kelling, G. L., Pate, T„ Dieckman, D., and Brown, C. E. (1974). The Kansas City 
Preventive patrol experiment: A summary report, Police Foundation, Washington, 
D.C. 

Kelling, G., Pate, A., Ferrara, A.. Utne, M., and Brown, C. E. (1981). Newark Foot Patrol 
Experiment. Police Foundation, Washington, D.C. 

Kelling, G. L„ and Moore, M. H. (1988). The evolving strategy of policing, Perspectives 
on Policing. National Institute of Justice, Washington, D.C. 

Kelling, G. L., and Coles, C. M. (1996). Fixing Broken Windows: Restoring Order and 
Reducing Crime in Our Communities, Touchstone, New York. 

Lehman, J. D. (1999). Corrections and community policing: The new paradigm, 
Community Policing Exchange, May/June. Accessed 10/31/99 from: http:// 
www.communitypolicing.org/publications/exchange/e26_99/e26 lehma.htm. 



Community Policing: Past, Present, and Future 


93 


Lurigio, A. J., and Skogan, W. G. (1998). Community policing in Chicago: Bringing offi¬ 
cers on board. Police Q. 1(1): 3. 

Manning, P. K. (1991). Community policing as a drama of control, in Community Polic¬ 
ing: Rhetoric or Reality, Greene, J. R., and Mastrofski, S. D., eds., Praeger, New 
York. 

Mayhall, P. D. (1985). Police-Community Relations and the Administration of Justice, 
3rd ed., Prentice Hall, Englewood Cliffs, NJ. 

Monroe, D. G., and Garrett, E. W. (1931). Police conditions in the United States, A Report 
to the National Commission on Law Observance and Enforcement. Government 
Printing Office, Washington. D.C. 

National Institute of Justice. (1998). Policing Neighborhoods: A Report from Indianapolis, 
Research Preview, U.S. Department of Justice, Washington, D.C., July. 

National Institute of Justice. (1999). Policing Neighborhoods: A Report from St. Peters¬ 
burg, Research Preiew. U.S. Department of Justice, Washington, D.C., July. 

Pate, A. M., Wycoff, M. A., Skogan, W. G., and Sherman, L. W. (1986). Reducing fear 
of crime in Houston and Newark: A summary report. Police Foundation, Washing¬ 
ton, D.C. 

Pate, A. M., and Shtull, P. (1993). Community policing grows in Brooklyn: The New 
York City Police Department’s model precinct project (a draft report), National 
Institute of Justice, Washington, D.C., June 30. 

Peak, K. J., and Glensor, R. W. (1999). Community Policing and Problem Solving: Strate¬ 
gies and Practices. Prentice Hall, Upper Saddle River, NJ. 

Piquero, A, Greene, J., Fyfe, J., Kane, R. J., and Collins, P. (1998). Implementing commu¬ 
nity policing in public housing developments in Philadelphia: Some early results, 
in Community Policing: Contemporary Readings, Alpert, G. P., and Piquero, A., 
eds., Waveland Press, Prospect Heights, IL. 

President’s Commission on Law Enforcement and Administration of Justice. (1967). Task 
Force Report: The Police, U.S. Government Printing Office, Washington, D.C. 

Radelet, L. A, (1986). The Police and the Community, 4th ed., Macmillan College Publish¬ 
ing, New York. 

Radelet, L. A., and Carter, D. L. (1994). The Police and the Community, 5th ed., Macmil¬ 
lan College Publishing, New York. 

Reaves, Brian A., and Andrew L. Goldberg. (1999). Law Enforcement Management and 
Administrative Statistics, 1997: Data for Individual State and Local Agencies with 
100 or More Officers. United States Department of Justice, Bureau of Justice Statis¬ 
tics, NCJ#171681, Washington, D.C. 

Reno, D. L. (1990). Community close-up: Madison Police Department; Madison, Wiscon¬ 
sin; in Community Policing: A Contemporary Perspective, Trojanowicz, R., and 
Bucqueroux, B., eds., Anderson Publishing, Cincinnati, OH. 

Rosenbaum, D. P., and Lurigio, A. J. (1994). An inside look at community policing reform; 
Definitions, organizational changes, and evaluation findings, Crime Delinquency 
40(3): 299. 

Rossi, P. H., and Freeman, H. E. (1993). Evaluation: A Systematic Approach, 5 th ed. New¬ 
bury Park, California. 

Schwartz, A., and Clarren, S. (1977). The Cincinnati Team Policing Experiment: A Sum¬ 
mary Report. Urban Institute and Police Foundation, Washington, D.C. 



94 


Jordan and Zager 


Sherman, L. W., Milton, C. H., and Kelly, T. V. (1973). Team Policing: Seven Case 
Studies, Police Foundation, Washington. 

Skogan, W. G. (1995). Community participation and community policing. Center for 
Urban Affairs and Policy Research, Northwestern University, Chicago, Illinois. 

Stephens, D. W. (1999). The impact of the 1967 ‘President’s Commission’ on policing 
today, in Police and the Community, 6th ed., Carter, D. L., and Radelet, L. A., eds. 
Prentice Hall, Upper Saddle River, NJ. 

Taylor, R. W., Fritsch, E. J., and Caeti, T. J. (1998). Core challenges facing community 
policing: The emperor still has no clothes, ACJS Today 77(1): 1. 

Trojanowicz, R. (1982). An Evaluation of the Neighborhood Foot Patrol Program in Flint, 
Michigan, Michigan State University, National Neighborhood Foot Patrol Center, 
East Lansing, MI. 

Trojanowicz, R., and Bucqueroux, B. (1990). Community Policing: A Contemporary Per¬ 
spective, Anderson Publishing, Cincinnati, OH. 

U.S. Department of Justice. (1999, May 6). “News and Information: Frequently Asked 
Questions.” U.S. Department of Justice, Office of Community Oriented Policing 
Services, Washington. D.C. [On-line]. Available: <http://www.usdoj.gov/cops/ 
news info/bg info/bg faq.htm>. Accessed August 18, 1999. 

Walker, S. (1999). The Police in America: An Introduction, 3 rd ed, McGraw-Hill College, 
Boston. 

Williams, H„ and Murphy, P. V. (1990). The evolving strategy of police: A minority 
view, in Perspectives on Policing, Washington, D.C.: National Institute of Justice, 
vol. 13. 

Wilson, J. Q.. and Kelling, G. L. (1982). Broken windows: The police and neighborhood 
safety, Atlantic Monthly, March 1982. Accessed 9/23/98 from: http:// 
www.theatlantic.com/election/connection/crime/windows 

Wilson, J. Q., and Kelling, G. L. (1989). Making neighborhoods safe, Atlantic Monthly, 
February 1989. Accessed 9/23/98 from: http://www.theatlantic.com/election/ 
connection/crime/safehood. 

Wycoff, M. A. (1991). The benefits of community policing: Evidence and conjecture, in 
Community Policing: Rhetoric or Reality, Greene, J. R., and Mastrowski, S. D., 
eds. Praeger Publishers, New York. 

Wycoff, M. A. (1994). Community Policing Strategies: Technical Report, Police Founda¬ 
tion, Washington, D.C. 

Wycoff, M. A., and Skogan. W. K. (1993), Community policing in Madison: Quality from 
the inside out, National Institute of Justice Research report, U.S. Department of 
Justice, Washington, D.C. 

The White House (1999). Remarks by the President at 21 st century crime bill unveiling. 
Press release. May 12. 



6 

Managing Criminal Investigation 


Brian Forst 

American University, Washington, D.C. 


The police seem to have reached a plateau at which the highest objective to 
which they aspire is administrative competence. And, with some scattered 
exceptions, they seem reluctant to move beyond this plateau—toward creat¬ 
ing a more systematic concern for the end product of their efforts...dealing 
with problems. 

Goldstein, 1979 


I. INTRODUCTION 

Criminal investigations are done on a case-by-case basis, but what is done in 
each case and how it is done depend heavily on the larger setting in which 
the investigators operate. Failures to solve individual cases are very often the 
result of prior failures in management and administration: inappropriate proce¬ 
dures for acquiring personnel and supporting resources, improper allocation of 
resources to cases, weak systems of accountability, ineffective leadership, and 
so on. 

Questions about how to manage a criminal investigation division or unit, as 
distinct from handling an individual criminal investigation matter, have become 
particularly challenging as pressures have mounted on police agencies to move 
from a bureaucratic style to one more responsive to solving problems in the com¬ 
munity, as suggested in the above quotation from Herman Goldstein. 

The relationship between the handling of an individual matter and the 
management of an entire operation is an important one that goes well beyond 
the domain of criminal investigations. General principles of management, admin- 


95 



96 


Forst 


istration and leadership apply to activities throughout the private and public 
sectors, from production processes to service delivery operations. Criminal in¬ 
vestigation is unusual for its coexistence in both the public and private sectors 
and for its having both laboratory process and service delivery aspects. General 
principles of management apply to each of these various sides of criminal in¬ 
vestigation. 

What are the essential issues of management that apply to criminal in¬ 
vestigation? The handling of each case depends critically on available investiga¬ 
tive resources, the demands on those resources at the time of a particular criminal 
episode, and the policies and procedures that have been put in place to guide 
the allocation of investigative resources. Although the quantity and quality of 
investigative resources are set largely through political processes, the priorities 
assigned to competing demands on those resources and the policies and pro¬ 
cedures guiding criminal investigations are management issues that must be 
determined by police executives. This chapter will describe these and other 
primary elements of management (organization, leadership, systems of account¬ 
ability and planning, human resource allocation and management and strategic 
approaches) as they pertain to the contemporary world of criminal investi¬ 
gation. 


II. ACQUIRING, DEVELOPING, AND 

ASSIGNING DETECTIVES AND OTHER 
INVESTIGATIVE RESOURCES 

Detectives on television and in motion pictures usually solve the crime. The real 
world of criminal investigation is different. Why? Primarily because actors deal¬ 
ing with fictional crimes are less likely to have to deal with investigative work¬ 
loads that far exceed investigative resources than are detectives in the real world, 
especially real detectives working in urban areas. Only in the most serious cases 
are real-world detectives typically able to spend the time needed to perform such 
activities as processing latent (invisible) fingerprints and seeking and inter¬ 
viewing witnesses. For actual police administrators the first order of business is 
to ensure availability of the resources needed to perform the work of criminal 
investigation and then to develop and allocate those resources as efficiently as 
possible. 

The principal resource of an investigative unit is the criminal investigator; 
detective work is a labor-intensive activity. Many other essential resources are 
involved in criminal investigation as well, from laboratory personnel to capital 
equipment such as automobiles, buildings, laboratory facilities and computers, 



Managing Criminal Investigation 


97 


to supplies needed to support the investigators and lab technicians. 1 Both the 
personnel and the nonpersonnel resources needed to conduct criminal investiga¬ 
tions must be deliberately acquired, effectively maintained, and thoughtfully allo¬ 
cated. 

The management of an investigative operation begins with a consideration 
of whether the existing mix of resources (personnel, capital equipment, and sup¬ 
plies) is appropriate for the problems at hand. Unfortunately, there is little empiri¬ 
cal evidence to guide the determination of an optimal mix for any particular 
investigative setting. 

Equally unfortunate is the limited control over basic budgetary matters that 
the director of investigative operations has in most investigative settings. Person¬ 
nel resources are procured in a process that differs substantially from that of 
budgeted nonpersonnel resources. Even if the director of investigative operations 
knew precisely the optimal resource mix for any given total budget amount, the 
opportunities to move toward that mix are extremely limited in most jurisdictions. 
The effective executive learns how these procurement processes operate and how 
to make a strong case for specific resource needs to the budgetary officials of 
the jurisdiction or, in large metropolitan police departments, to the chief fiscal 
officer in the department’s office of planning and budgeting. 

Systematic analyses of investigative operations, sometimes known as “op¬ 
erations analysis,” can help to prioritize investigative workloads and minimize 
misallocations of scarce investigative resources. The tools used to conduct such 
analyses, developed by specialists in managerial economics, operations research, 
and industrial psychology, have been applied to a wide variety of settings in 
production and service delivery industries. They focus on growth in caseload 
demands, specific resource allocations that tend to yield the most successful out¬ 
comes, and comparisons of a jurisdiction’s own ratio of investigative resources 
to the demands on those resources with the ratios for comparable jurisdictions. 

A. Recruitment and Screening 

Several factors determine the number of investigators and their levels of ability: 
the department’s human resource policies and the policies and regulations gov¬ 
erning recruitment, screening, training, promotion and evaluation, compensation, 
and assignment. 


1 Capital equipment is any asset that has an expected life of at least 1 year (e.g., buildings, vehicles, 
office equipment), as distinct from supplies and other assets (e.g., gasoline and paper) that appear 
on an operating budget, typically having a life of less than a year. Many public budgeting systems 
ignore this otherwise universal distinction between capital and operating budgets, treating all expen¬ 
ditures as current-year outlays, regardless of the expected life of the asset. 



98 


Forst 


Thoughtful procedures for conducting these aspects of human resource 
management in policing were first developed by Sir Robert Peel in 1829, in shap¬ 
ing the London Metropolitan Police Department. Peel replaced an informal and 
unsystematic recruitment process with one that relied on rigorous screening and 
training methods to identify and root out incompetent people during a probation¬ 
ary period before they could seriously damage the department and the commu¬ 
nity. 2 These basic principles of police personnel management have profoundly 
affected the selection and professional development of detectives. 

Recruitment and screening for detectives generally require a three-stage 
process. First, the person must qualify as a sworn officer by satisfying educational 
requirements, typically a high school diploma or, in an increasing number of 
departments, college eduction, 3 and passing physical and psychological tests. The 
applicant who passes these tests must then successfully complete police academy 
training. In most police departments the officer must then serve successfully in 
a uniform patrol assignment for some time before becoming eligible for promo¬ 
tion to detective. 

An important element of the recruitment and selection stage of police per¬ 
sonnel management is the need to ensure that recruitment and selection processes 
are free of biases. The Civil Rights Act of 1964 provided a foundation for the 
reduction of these biases. This act helped to ensure that minorities and women 
were not discriminated against in the recruitment and screening process by estab¬ 
lishing the Equal Employment Opportunity Commission (EEOC). This founda¬ 
tion was strengthened by EEOC reforms established in 1972, creating a legal 
basis for affirmative action programs for minorities and women. 

These mandates appear to have made an impact. The percentage of minori¬ 
ties serving as sworn officers in many urban police departments equals or sur¬ 
passes that of the populations served by those departments, and the chiefs in large 
cities are as often African-American or Hispanic as they are white (Carter and 
Sapp, 1991; Walker et al., 1995). These increases in minority representation may 
well have contributed to the ability of patrol officers and plainclothes personnel 
to investigate and solve crimes that occur in minority neighborhoods. 

The inclusion of women in policing has been slower. The percentage of 
women increased from below 5% to about 10% by the end of the 1980s, and 
continues to grow slowly, with greater gains in municipal police departments 


2 Encrusted systems of political patronage in the United States throughout the 19th and into the early 
20th century succeeded in resisting the adoption Peel’s rigorous model of screening in this country 
for about 100 years after his use of such standards in England. August Vollmer was among first 
police executives in the United States to emphasize rigorous screening standards. 

3 A college degree is mandatory for most federal investigative agencies and is required increasingly 
by more elite investigative programs at state and local levels. Graduate degrees have increasingly 
become recommended for promotion in the more prestigious investigative agencies. 



Managing Criminal Investigation 


99 


than in rural and suburban departments. Women’s appointments to administrative 
positions have been slow in most settings (Martin and Sherman, 1986). 

By the end of the 20th century courts became less aggressive in supporting 
affirmative action, following concerns about “reverse discrimination.” Nonethe¬ 
less, the principle of improved representation of people whose opportunities in 
policing traditionally have been limited remains important in most jurisdictions. 
Some regard this as the most important contemporary problem in human resource 
management in policing (Cordner, 1992: 232-233). 

Another important development in policing at the end of the 20th century 
was the increased use of civilians to fill specialty niches previously filled by 
sworn officers. The percentage of civilian employees in medium-sized and large 
police departments throughout the United States increased from 11% (8.3 sworn 
officers for each civilian) in 1965 to 28% (2.6 sworn officers per civilian) in 1996 
(Federal Bureau of Investigation, 1966; Reaves and Goldberg, 1998). Civilians 
now serve routinely as crime scene technicians, dispatchers, researchers and ana¬ 
lysts, computer and information specialists, legal and psychological counselors, 
and accountants and financial experts. These specialists often have advanced de¬ 
grees in forensic science, biology, chemistry, computer science, and other disci¬ 
plines increasingly essential to contemporary investigative practice. They are also 
used as parapolice in schools and for community service activities. 

The general standards of recruitment and selection vary substantially from 
jurisdiction to jurisdiction, depending on the affluence and education of the citi¬ 
zens served, degree of urbanization, and factors unique to particular settings. The 
standards have escalated as the result of civil actions and the police accreditation 
process, which aims primarily to improve policing, as well as providing formal 
credibility against lawsuits. The Commission on Accreditation for Law Enforce¬ 
ment Agencies (CALEA) accredits departments that meet standards set by 
CALEA’s governing board. CALEA’s standards for recruitment are shown in 
Table 1. 

Other procedures exist to improve personnel recruitment and screening 
practices. One is job analysis, designed to clarify the role and requirements of 
each investigative position to be filled. In the process of clarifying each position, 
job analysis offers quantifiable criteria for performance assessment and explicit 
requirements that can be defended in court in the event of a legal action or com¬ 
plaint. 

Job analysis is not without limitations, however. Job analysis of policing 
positions sometimes results in selection criteria that are readily measurable, 
emphasizing physical skill or strength rather than common sense. The person 
chosen for the job may meet the criteria specified but may not be as well suited 
as one with more difficult to measure abilities that are especially important in 
criminal investigation, such as the ability to exercise mature judgement consis¬ 
tently. 



100 


Forst 


Table 1 CALEA’s Recruitment Standards 

Standard 31.1.2 Individuals assigned to recruitment activities are knowledgeable in 
personnel matters, especially equal employment opportunity/affirmative action as it 
affects the management and operations of the agency. 

Standard 31.3.2 The agency posts job announcements with community service 

organizations and/or seeks cooperative assistance from community organizations and 
key leaders. 

Standard 31.2.3 The agency has an equal employment opportunity plan. 

Standard 31.3.1 The agency’s job announcements and recruitment notices: 

a. provide a description of the duties, responsibilities, requisite skills, educational 
level, and other minimum qualifications or requirements; 

b. advertise entry-level job vacancies through electronic, print, or other media; 

c. advertise the agency as an equal opportunity employer on all employment 
applications and recruitment advertisements; and 

d. advertise official application filing deadlines. 

Standard 31.2.2 The affirmative action plan includes the following elements: 

a. statement of measurable objectives; 

b. plan of action to correct any inequities, indicating specific action steps to be 
taken and a timetable for implementation, designed to achieve the objectives in 
bullet (a); and 

c. procedures to periodically evaluate the progress toward objectives and revise/ 
reissue the plan. 

Source: Commission on Accreditation for Law Enforcement Agencies. 1994. 


Some departments use tests to qualify applicants for detective positions. 
Others rely on more informal procedures: interviews with candidates, checks with 
their supervisors and peers, and reviews of their personnel files. 

Tests can be useful for establishing levels of knowledge regarding the cen¬ 
tral aspects of investigation, but high test scores alone do not guarantee high 
levels of investigative performance on the job. Other candidates interview well 
and are liked by their supervisors and peers but lack essential knowledge not 
identified in an interview. Combining a formalized testing approach with the 
more informal interviews and record checks can provide the best of both worlds: 
the reliability of the former and the validity of the latter. 

B. Training and Development 

Since patrol officers typically are the first to arrive at a crime scene that requires 
investigative skills, elementary information about criminal investigation is an 
important part of basic police academy training. Patrol officers usually serve as 
the only investigators of minor crimes, so such training does more than just pre- 




Managing Criminal Investigation 


101 


pare arriving patrol officers to conduct sound preliminary investigations at crime 
scenes that will be followed up by investigative specialists. Patrol officers subse¬ 
quently gain experience in investigation informally with feedback from experi¬ 
enced investigators on the job. 

Officers promoted to detective assignments are often sent to special investi¬ 
gative training programs offered at a state-level police academy or at a national 
center such as the Federal Bureau of Investigation (FBI) Academy at Quantico, 
Virginia, or the Federal Law Enforcement Training Center at Glynco, Georgia. 
Large municipal police departments typically offer standard training curricula 
for new investigators at the police academy; they send their more experienced 
detectives on to state or national training centers for specialized investigative 
skills. 

Formal academy training in criminal investigation is reinforced for the de¬ 
tective through on-the-job training as a criminal investigator. For the committed 
detective, investigative training at a police academy is often complemented by 
college coursework in the principles of criminal investigation. 

Training programs in investigation are as varied as the requirements to 
qualify as a detective in the first place. It has been reported that it takes less time 
for the FBI to train civilians to be investigators than it does for most urban 
police departments to train their recruits (Lynch, 1995:175). 4 As with other occu¬ 
pations, most detectives probably end up learning more from their on-the-job 
experience than they do from formal training programs, but clearly both kinds 
of training are essential for building the skills needed for effective criminal inves¬ 
tigation. 

C. Compensation and Promotion 

Investigators, like other sworn police officers, are compensated with standard 
pay based on rank (Detective II, Detective I, Sergeant) and seniority, incentive 
pay, overtime pay, per diem pay, and a fringe benefit package that varies from 
department to department, but generally includes retirement pay, life insurance, 
and health benefits. For many detectives, the most significant compensation of 
their work is job satisfaction: a sense of fulfillment in solving crimes, serving 
the community, and experiencing camaraderie and memorable times not ap¬ 
proached in other occupations. This sense of satisfaction can be effectively stimu- 


4 This comparison suffers from several unknowns: the FBI trainees tend to have considerably higher 
levels of educational attainment than the urban police recruits, they are likely to differ substantially 
in other ways as well, training in urban police departments may provide a broader range of informa¬ 
tion, we do not know how successful each of the training programs being compared is in imparting 
the curriculum, and so on. Still, the fact suggests variation in training approaches, and may come 
as a surprise to some. 



102 


Forst 


lated through informal and formal recognition from supervisors in the unit. Typi¬ 
cally, acknowledgments range from sincere words of gratitude and pats on the 
back at the informal end of the recognition spectrum to letters of commendation, 
Detective-of-the-Month awards, and citations from the chief for valor, merit, or 
conspicuous achievement at the formal end. 

Job satisfaction is generated also from promotions. Promotions formally 
acknowledge the detective’s growth in competence in the department; they also 
reveal an individual’s progress along a career ladder, something to plan for, work 
toward, and look forward to achieving. As in other occupations, promotions are 
not guaranteed, and disappointments occur when the department’s ability to pro¬ 
mote is restricted. 

Most departments base promotions on annual or semiannual on-the-job per¬ 
formance assessments, usually written by supervisors with input from others in 
positions to evaluate the detective’s work, performance in an oral interview, se¬ 
niority, education, and scores on promotion examinations. The detective is most 
likely to support the department’s promotion system when it is objective, consis¬ 
tent with the department’s goals and values, and neither overly lenient nor severe. 

Unfortunately, not all departments’ promotion systems are fair and rigor¬ 
ous. The worst are based on favoritism. Even the more objective systems can be 
flawed, however, by giving too much weight to the candidate’s ability to score 
well on tests and too little weight to objective assessments of the candidate’s 
leadership abilities and judgement. 

Some departments have augmented conventional performance assessment 
and promotion systems with evaluations by assessment centers: teams that assess 
candidates at a neutral site, typically a hotel. These evaluations usually last from 
1 to 3 days, involving extensive interviews and simulation exercises that test the 
candidate’s ability to set priorities and act quickly. The assessment team typically 
rotates among the candidates and provides feedback at the end of the process. 
Assessment center evaluations are expensive, but they tend to be more thorough 
than conventional alternatives. They can be especially useful for high-level pro¬ 
motion competitions. 

When promotion opportunities are limited, departments can still provide 
recognition and job satisfaction to the detective in the form of job enrichment. 
Job enrichment consists of expanding the detective’s responsibilities, typically 
by reassigning the detective to an important case or a set of more challenging 
cases. Job enrichment is distinguishable from job enlargement, which involves 
simply giving the detective more work to do—not more interesting, just more. 

Eventually, detectives leave the department. Most leave voluntarily, either 
at the time of retirement or by resigning, often to take a job in another department 
or in the private sector. Retirements and resignations sometimes are initiated by 
the department rather than by the detective voluntarily, and are sometimes caused 
by health problems. 



Managing Criminal Investigation 


103 


Under what circumstances are detectives asked to leave the department? 
Such firings are rare, typically following a serious behavioral lapse or series of 
such problems. Examples of serious breaches of duty include an unwarranted 
discharge of a firearm, an act of corruption, repeated displays of incompetence, 
a pattern of damages to department vehicles, equipment losses, excessive use of 
sick leave, or drug abuse. Charges of such breaches of responsibility are validated 
in most large departments by the Internal Affairs Division and, in small depart¬ 
ments, by the chief. 

Misconduct can often be anticipated by observing a detective’s coping be¬ 
havior. Healthy coping behaviors include regular exercise, participation in family 
activities, hobbies, and sports. An increase in unhealthy coping behaviors such 
as smoking, drinking, and excessive television viewing often precede lapses in 
conduct. 

Indications that a detective is headed toward a forced resignation or firing 
can be used as a basis for taking corrective action. The detective’s supervisor is 
generally in a position to recognize such signs and offer counseling. Rotation to 
a different assignment can be an effective way of moving the detective in a more 
positive direction. Other options include counseling by a staff or outside psychol¬ 
ogist, training in stress management or in an area of deficient performance, refer¬ 
ral to an employee assistance program, a physical examination with urinalysis, 
and disciplinary action. 

Discipline—the individual’s automatic compliance with policy—is an es¬ 
sential aspect of policing in general and detective work in particular. It is stimu¬ 
lated by sound recruitment, screening and training practices, and effective sys¬ 
tems of supervision, leadership, and accountability. 

D. Assignment and Resource Allocation 

How to assign the detectives in a unit and allocate supporting resources are among 
the most important decisions facing the management of an investigative unit. The 
ability of the unit to achieve its goals and objectives revolves largely around the 
soundness of those decisions. Unsolved crimes can present limitless demands on 
the scarce resources of an investigative unit. 

What are the basic rules for assigning detectives to cases? How should it 
be determined which crime scenes will receive greater allocations of scarce crime 
scene technicians and related support? Generally, the more serious cases should 
and do receive the greatest amount and quality of investigative attention. Homi¬ 
cide cases normally receive substantially more investigative attention than less 
serious crimes. 

More effort will generally go into the collection of tangible and testimonial 
evidence also in cases that appear to have been committed by chronic offenders, 
which are cases that the community should find greater value in solving. 



104 


Forst 


Even when the solution requires few resources (when the identity of the 
offender is immediately apparent, with reliable witnesses and a smoking gun), 
it is essential that the investigation support the prosecution of the case with evi¬ 
dence that will help to secure a verdict or plea of guilt. The allocation of investiga¬ 
tive resources is driven, in short, by the need both to solve cases and to produce 
evidence needed to obtain a conviction. 

Among a set of cases of approximately equal seriousness, those cases that 
should and generally do receive the most attention are the ones for which the 
assignment of resources most increases the prospects of solution and conviction. 
As with the decision to allocate resources to alternative leads in a given case, 
investigative resources should start with the obvious: they should be applied to 
the prospects that are most likely to result in arrest (or exculpation) and convic¬ 
tion. 

For the most serious cases, some evidence that is only potentially useful 
will be collected, in order to minimize the risk of excluding items that turn out 
to be more useful and relevant than was initially apparent. Executive decisions 
must be made to determine whether to allocate scarce resources to pursue margin¬ 
ally useful evidence in more serious cases at the expense of critical evidence in 
less serious cases. 

Another basic principle that may influence the assignment of cases to indi¬ 
vidual investigators is that of economies of specialization or division of labor. 
While all investigators should know the basics of each major aspect of investiga¬ 
tion, a fact of every organization is that skill and knowledge levels vary. In addi¬ 
tion to particular skills in such specialties as arson, gangs, rape, domestic vio¬ 
lence, baby deaths, and knowledge of a particular neighborhood, some detectives 
are especially skilled at drawing accurate information out of suspects and wit¬ 
nesses, while others are better at handling physical evidence, and others at using 
computers. The most serious, highest-profile cases generally call for a particular 
mix of skills and knowledge, to ensure that each major facet of the investigation 
is done at the highest level of proficiency. Routine cases are more likely to be 
assigned largely on the basis of personnel availability. 


III. ORGANIZATION, MANAGEMENT, AND LEADERSHIP 

The management of police organizations in the United States has been character¬ 
ized by several distinct eras. Police management in the 19th century was largely 
corrupt, dominated by a system of political patronage in which the police served 
the mayor who had hired the chief. When the police failed to secure that official’s 
re-election, the new official generally swept out the prior administration’s police 
and brought in a new crop of cronies. 

The Reform Era at the end of the 19th century induced a shift toward profes- 



Managing Criminal Investigation 


105 


sionalism, influenced first by the “scientific management” school of Frederick 
Taylor, which introduced principles of industrial engineering and efficiency into 
the workplace. 

By midcentury that approach became widely regarded as too rigid and in¬ 
sensitive, opening the door to Elton Mayo’s “human relations” school of man¬ 
agement. Mayo’s model was characterized by an emphasis on informal interac¬ 
tions, viewing employees as basically good, social animals interested more in 
respect and camaraderie than in money or organizational structure. 

In the 1960s the “systems management” approach of Frederick Herzberg 
and others became popular, emphasizing linkages between the needs of the indi¬ 
vidual for fulfillment and those of the organization for accomplishing specific 
objectives within a larger goals framework. By the 1990s a system of decentral¬ 
ized accountability evolved, associated with the community policing movement 
and parallel to similar developments reshaping organizations outside of policing. 

The management of criminal investigation units was largely insulated from 
these shifts in the management of policing generally, due primarily to the lower 
profile nature of detective work. This shielding of investigative units from larger 
trends in police management has declined toward the end of the 20th century, 
as the interdependencies between investigative units and patrol activities have 
become increasingly apparent. Detectives typically come from patrol positions 
and often return to them, sometimes as lieutenants or captains. Detectives in most 
departments have come to appreciate the importance of effective coordination 
between themselves and patrol officers. In addition, the work of detectives has 
come under much closer scrutiny as the media have focused more on celebrity 
and other high-profile cases. Detectives can no longer hide within a complex 
police hierarchy. 

A. Basic Organization Principles 

About 10% of most major police department human resources are assigned to 
investigative positions (Police Foundation, 1972: 28). The success of that sub¬ 
stantial resource commitment to investigation depends on the manner in which 
the resources are organized. 

One of the legacies of Robert Peel’s Metropolitan Police Department is 
a centralized organization. It brought order to a previously disarrayed band of 
peacekeepers by following the military model of command and control. Under 
Peel, the police organization would be run from the top down, with a graded 
authority structure and hierarchy of authority. It was designed to assure account¬ 
ability, impartiality, and an efficient public-service orientation. 

A common element of hierarchy of authority is unity of command: each 
person in the organization should report to no more than one supervisor. This 
principle strengthens control in a unit, but can do so at the expense of depriving 



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subordinates of useful advice that might be otherwise available from other units. 
As police personnel have become more educated and departments more open, 
the unity of command and centralized authority principles have given way to 
more flexible police organizations, creating agencies that are more accepting and 
often encouraging informal communications throughout the department. Com¬ 
mand and control systems must remain firmly in place in policing organizations, 
especially for emergency matters, but police organizations today tend to be less 
rigid than during the mid-20th century. 

In many metropolitan police departments detectives are assigned both to 
the general operating units or precincts and to a separate criminal investigation 
division or bureau that deals with the most serious cases and specialized matters: 
homicides, sex crimes, robberies, burglaries, and auto thefts. A few very large 
jurisdictions have a separate unit for each of these specialties. Detectives may 
also show up in assignments with the traffic division to conduct accident investi¬ 
gations or in the drug enforcement or morals division to conduct undercover 
prostitution or drug investigations. In smaller departments all the detectives usu¬ 
ally work out of the precincts. In large and medium-sized departments, detectives 
working in the precincts can offer skilled investigative services on an around- 
the-clock basis. 

Whether assigned to the criminal investigation division or to the precincts, 
detectives assume “line” positions in the police organization, filling operating 
rather than administrative or “staff” support positions. Patrol operations, the 
investigative division and traffic divisions are the standard line components of a 
municipal police department; officers in these divisions make arrests and work 
directly with citizens to prevent and solve crimes and preserve order. Investiga¬ 
tors working out of precincts are usually assigned geographically as well, not 
only unique to the precinct location but, under community policing strategies, 
assigned by neighborhood. 

An agency’s organization chart depicts the formal organization, but organi¬ 
zations typically have informal hierarchies and relationships among individuals 
as well. The informal organization can be more potent in determining individual 
behaviors and aggregate performance levels than the formal one. Others have 
noted that humans are social animals more interested in, and typically more 
deeply influenced by, respect, camaraderie, flexibility, and honest communication 
than in formal organizations and in communication that flows only downward 
(Mayo, 1933; Souryal, 1995: 53-56). 

B. Coordination and Communication 

Detectives almost never solve crimes without help from others. Typically, detec¬ 
tives receive cases from the patrol officer who conducted a preliminary investiga¬ 
tion at the crime scene. They often work with officers from other jurisdictions 



Managing Criminal Investigation 


107 


to exchange information about suspects in a case or series of cases. They work 
closely with patrol officers assigned to the beats where the crime occurred to 
obtain information from other sources in the area, and such information often 
turns out to be the difference between a solved and an unsolved crime. 

The need for detectives to coordinate with others has become especially 
important in most contemporary settings. Communities have turned increasingly 
to private solutions to the problem of crime prevention, and for serious commer¬ 
cial and residential crimes, police investigators must work effectively with private 
security agents for information leading to solved crimes and to the prevention 
of future crimes. 

Community policing strategies also call for increased coordination with 
public and private institutions—including social service agencies, churches, and 
public utilities—to solve crimes, aid victims, and prevent future crimes. Patrol 
officers often perform many of these coordinating activities, but investigators 
cannot always leave these tasks for patrol officers alone to carry out. 

Coordination begins with effective communication, both formal and infor¬ 
mal. Formal communication is preferable in a variety of circumstances: when 
important information needs to be given precisely and systematically, when the 
information needs to be preserved, or when sensitive information cannot be effec¬ 
tively presented in person, for example, because it may be easily distorted or 
misunderstood. Informal communication is more in order when flexibility is 
needed, when real meanings must be conveyed that are not clear in formal modes, 
when formal modes are too costly, or when a personal touch is needed to stimulate 
unity. 

Effective communication serves a multitude of purposes. It informs and 
educates, providing essential information clearly. It serves to unite, often by re¬ 
solving controversy and facilitating the redress of grievances. It serves to moti¬ 
vate by showing respect and assurance, avoiding threats, soliciting ideas, giving 
reasons behind directives and basic information, and by listening as well as trans¬ 
mitting information. It can improve operations by stimulating useful feedback 
and cooperation. 

C. Management and Leadership 

The person who directs an investigative unit must be able both to manage and 
to lead. Management skills have to do primarily with cognition and execution: 
to know what needs to be done and ensure that those things are done effectively, 
without excessive expenditures of time and other resources. An effective manager 
of an investigative unit is knowledgeable about the unique demands associated 
with achieving high solution rates and about the resources available to respond 
to those demands, as well as new developments that affect the unit: technological, 
social, legislative and political, and demographic. 



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The effective investigative manager stays attuned also to changes in the 
community that have implications for investigation, especially those that affect 
the willingness of citizens to cooperate with the police. One who cannot manage 
effectively is bound to fail sooner or later, regardless of leadership skills. 

It is equally true that a manager who cannot lead is bound to fail sooner 
or later. Leadership skills come in a variety of personal styles, but good leaders 
have several traits in common. Leaders shape the character of the investigative 
unit. Effective ones appeal to the desires of the members of the unit to perform 
competently by enlisting their support, communicating the goals of the unit 
persuasively, and then sustaining the members’ motivation to work toward 
those goals. Leaders generally maintain support by keeping their doors open, 
encouraging communication, and avoiding hidden agendas. The most effective 
leaders have the ability to show the way, to set high standards of moral behavior 
and competence, and to serve as examplars by practicing what they preach. They 
understand that influence derives more effectively from the individual than 
from the position; they resort to coercive use of authority only in times of emer¬ 
gency and under other exceptional circumstances. Thus, effective leaders mix 
authoritarian, democratic, and laissez faire approaches to suit individual circum¬ 
stances. 

Leaders set high but achievable goals and clarify the values of the investiga¬ 
tive unit, removing ambiguity about what is important. They clear up the follow¬ 
ing sorts of issues: Which ethical standards are most in need of attention in this 
unit? What, precisely, does “integrity” mean? What standards of personal and 
professional excellence will be emphasized? Are the value of human life, the 
dignity of the individual, the just exercise of power and discretion, and the author¬ 
ity of law all equally important? How do we weigh the error of letting an offender 
go free against the error of wrongfully accusing an innocent person? 

Leaders are able to unify the investigative unit, minimizing the negative 
effects of cultural, educational, and gender differences among the members of 
the unit as well as differences between the members of the unit and people outside 
the organization, effectively resolving disputes before they interfere with opera¬ 
tions. 

Effective leaders appeal largely to the human element, but detectives usu¬ 
ally do so in police units through consistent behavior, self-control, and respect 
for others. They draw primarily on people’s natural senses of duty, compassion, 
and fairness. They set rules that reflect sound values and advance people within 
the unit who demonstrate strong leadership skills themselves. They know when 
the members of the organization can work effectively under close supervision, 
when rules must be followed, and when a free-rein style is called for, when 
individuals can be counted on to exercise discretion prudently. This sort of leader¬ 
ship awareness is especially valuable in today’s more enlightened community- 
and problem-oriented policing environments. 



Managing Criminal Investigation 


109 


Leaders typically reveal their powers primarily within the organization, but 
they can be effective working within a larger framework as well. Even leaders 
are, after all, subordinates to some higher authority. In public organizations they 
are ultimately servants to people outside the organization. 

Are leaders bom or made? Yes. Everyone is not cut out to lead, but many 
who were once not thought of as having leadership potential have developed into 
effective leaders through education and training, the experience of observing 
other effective leaders, self-analysis, feedback from peers and subordinates, the 
practice of ethical behavior, and acceptance of leadership responsibility. 


IV. SYSTEMS OF ACCOUNTABILITY 

Leaders of investigative units can lead more effectively when they are supported 
by sound administrative structures: a coherent cycle of goal setting, planning and 
control, thoughtfully crafted directives and guidelines, and other clear systems 
of accountability. 

What precisely is meant by accountability? The core notion is that those 
to whom authority is delegated must be held accountable for its use. Accountabil¬ 
ity cannot be effectively implemented in units where functions are poorly defined 
or in which little or no authority is delegated. When something goes wrong, 
accountability works by finding out what went wrong and why. Accountability 
systems are needed both to make good on the public trust of detectives and to 
protect the unit and the department legally. They provide a basis for differentiat¬ 
ing between honest mistakes and incompetence or willful betrayal of policy in 
investigation. Thus, they can serve the goals of protecting citizens against crime, 
bringing offenders to justice, and minimizing wrongful use of the arrest power. 

A. External Accountability 

The courts, civilian review boards, mayors and other elected representatives, and 
budget officials are charged to hold investigators accountable to authorities out¬ 
side the department. High-profile cases that make the evening news, including 
the occasional celebrity case, also induce accountability outside the department, 
by the media. Investigative units can minimize the occurrence of embarrassments 
from such sources by instituting effective systems of accountability within the 
department. Those systems can be valuable also for performance appraisals, to 
assess individual investigators and others within the unit, and provide a basis for 
promotions and other personnel actions. 

One increasingly important system of external accountability is civil liabil¬ 
ity. Police departments can be held liable for a harmful act that results from an 
improper department recruitment, selection, or training practice (Lynch, 1995: 



110 


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209-10). Under the doctrine of vicarious liability, established in the case of 
Monell v. NY City Department of Public Services, police administrators can be 
held financially liable if it can be shown that an officer has abused his or her 
authority as a result of inadequate supervision (Kappeler, 1993). 

B. Internal Accountability 

Investigative units can reduce liability risks and respond to other sources of exter¬ 
nal accountability by improving their internal accountability systems. This begins 
by ensuring that the unit’s standards for acquiring personnel and nonhuman re¬ 
sources are appropriately high. The success of an investigative unit (its ability 
to respond to demands for investigative service) depends, after all, on the quantity 
and quality of its resources. The technical capacities of those resources, especially 
forensic capability and the effectiveness of the department's information technol¬ 
ogy systems, can be developed through effective recruitment, training, and per¬ 
sonnel development programs. The unit’s success depends as well on behavioral 
factors that are shaped largely by the quality of supervision and values embraced 
and communicated throughout the unit. 

The investigative unit can achieve internal accountability in a focused man¬ 
ner by using the planning cycle more effectively and clarifying its policies and 
procedures. The ability of the unit to function effectively can be enhanced through 
the standard planning and control cycle: set appropriately high goals, ones that 
are ambitious yet attainable; plan for their attainment; and monitor the execution 
of the plan and take corrective actions as the needs become apparent. 

In the 1970s and 1980s, in an attempt to improve low case solution rates, 
the Law Enforcement Assistance Administration (LEAA) funded several projects 
designed to employ principles of goal setting, data collection, and analysis to 
support resource allocation and case decision-making. 5 While the success of those 
efforts has not been rigorously validated, it is difficult to argue with the impor¬ 
tance of deploying resources more thoughtfully through a process of coherent 
planning and systematic control of investigations. 

The planning cycle begins with the setting of goals and objectives. The 
goals of an investigative unit grow out of standard police mission statements 
such as “to serve the public by protecting life and property and maintaining 
order.” Mission statements are broader and stated at a higher level of abstraction 
and greater permanence than goals; goals identify the specific elements of primary 
importance to the unit. Mission statements and goals serve to align the practices 


5 The problem of low solution rates had been documented by Greenwood et al. (1975). Two of the 
more prominent programs to improve investigative practice through more systematic management 
were Managing Criminal Investigations (MCI) and the Integrated Criminal Apprehension Program 
(ICAP). 



Managing Criminal Investigation 


111 


of the members of a unit with the larger values of the organization. Typical goals 
of a criminal investigation division are “to solve crimes,” “to gather evidence 
that supports the arrest and conviction of offenders,” and “to minimize error in 
investigative activity.” 

Objectives are more specific and measurable than goals, pertaining to a 
specific period, usually within a year. Since some crime categories tend to be 
inherently more difficult to solve, such as burglary, the objectives of an investiga¬ 
tive unit will generally consist of specific targets for solving each major category 
of crime, typically in terms of solvability factors, clearance rates, and arrest rates. 
They might also include prosecutor acceptance rates, conviction rates, citizen 
satisfaction levels, and peer survey results. The following are some examples of 
objectives: 

Increase the clearance-by-arrest rates for homicide from 60% to 70% 

Increase the clearance rates for forcible rape from 40% to 50%, the robbery 
clearance rate from 25% to 35%, and burglary from 10% to 20% without 
reducing the rates at which prosecutors file the arrests in felony court 

Decrease the rate at which citizens complain about investigative services 
to half that of last year. 6 

The targets set should be attainable, feasible benchmarks to aim for im¬ 
provement, so as not to breed cynicism. At the same time, they should not be 
so modest that their attainment is virtually guaranteed by conducting business as 
usual. 

The targets are useful primarily for serving the interests of unit accountabil¬ 
ity and performance assessment, but they are useful also for identifying problems, 
examining the geographical patterns of problems, and assessing experimental 
programs and activities. Targets also enrich the role of the investigator by provid¬ 
ing a basis for individual motivation, achievement, recognition, and advance¬ 
ment. 7 

Of particular importance to the planning cycle, these targets provide the 
primary basis for the monitoring and control of investigative operations. When 
objectives are not met, consideration should be given to modifications aimed at 
improving performance: obtaining additional resources, reassigning low-per¬ 
forming investigators, and improving coordination with patrol units and with 
investigators in neighboring jurisdictions. 

Objectives and targets are not meaningful without specific plans designed 
to accomplish them. Plans are needed to shape operations in ways that improve 


6 Some authorities view such targets with skepticism. See, for example, Fyfe (1993: 276). 

7 According to Herzberg (1968), these incentives tend to be more effective than “hygiene factors” 
such as salary, working conditions, and job security. 



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performance, reduce wasteful practices, and identify chronic problems and solve 
them. They should also provide for the generation of observable measures that 
will provide a basis for periodic review and analysis of operations. Many investi¬ 
gative units use a consolidated monthly report to track trends in the processing 
and disposition of investigations, and thus provide a degree of measured account¬ 
ability to the performance of the unit. 

The integrity of any system of accountability will suffer if the data used 
to support the system are incomplete, inaccurate, poorly organized, or not readily 
accessible; the legitimacy of the system will in turn suffer as these deficiencies 
become apparent to people both within and outside the organization. 

C. Administrative Directives and Guidelines 

One important aspect of administration generally and internal accountability in 
particular is the department’s set of directives and guidelines governing the in¬ 
vestigative function. Police departments large and small must create written direc¬ 
tives to establish the existence of an investigative function, identify the activities 
involved, and locate the function organizationally within the department. Depart¬ 
ment directives and guidelines should also indicate the criteria for determining 
the status, assignment, and documentation of each case that comes to the investi¬ 
gative unit, as well as cases under investigation in patrol units. 

Directives for the case status system should specify the criteria used to 
determine whether and when cases are ‘ ‘open, ” “ suspended, ” “closed, ” or ‘ ‘un¬ 
founded.” Guidelines should also specify case-screening criteria, based on 
solvability factors. Solvability factors are items of information associated 
with the likelihood that the case will be solved: witnesses, named suspects, de¬ 
scriptions of suspects, vehicle license numbers and descriptions, physical evi¬ 
dence, and so on. 

Guidelines pertaining to assignment should set forth the criteria for follow¬ 
up investigations and the assignment of such cases to investigators, as well as 
rules pertaining to “on call” responsibilities and the use of investigative task 
forces. They should also describe the investigative responsibilities of patrol offi¬ 
cers and the criteria for temporarily assigning patrol officers to investigative com¬ 
ponents. 

Directives pertaining to the documentation of investigative activities should 
describe the system for maintaining case files, indicating the types of records to 
be maintained, accessibility to the files, and the purging of files. They should 
also specify the documentation of accountability for conducting preliminary and 
follow-up investigations as well as the requirements governing the preparation 
of each investigator’s daily activity report. 

Such written policies should not be designed to settle every ambiguous 



Managing Criminal Investigation 


113 


situation. They should help, however, to clarify the department’s basic policies 
governing the administration of the investigative function. 

D. Operational Guidelines 

Guidelines are needed also to facilitate investigative operations. Organizations 
usually operate most effectively when they rely on competent people to exercise 
discretion wisely. Even experienced investigators, however, need basic guidelines 
to clarify areas of ambiguity in the performance of their work. Moreover, patrol 
officers and junior investigators who find themselves as the lead investigator in 
a case must have support in the form of explicit directives that set forth the 
department’s basic procedures for investigation and that clarify issues that might 
otherwise lead to confusion and error. Such guidelines serve to improve perfor¬ 
mance and offer a degree of protection from civil suits against the department. 

Operational guidelines should cover a variety of investigative issues, in¬ 
cluding procedures for developing information; interviewing victims and wit¬ 
nesses and interrogating suspects; collecting, preserving, and using physical evi¬ 
dence; and surveillance. They should spell out the basic steps involved in 
conducting preliminary investigations, including the observation of conditions, 
events, and remarks; locating and identifying witnesses; maintaining the crime 
scene and protecting evidence; interviewing the complainant and witnesses; inter¬ 
rogating suspects; arranging for the collection of evidence; conducting searches; 
arresting suspects; and documenting the incident. They should specify the basic 
procedures for developing information; interviewing victims and witnesses and 
interrogating suspects; collecting, preserving, and using physical evidence; and 
conducting surveillance operations. 

Guidelines should also spell out the basic steps involved in conducting 
follow-up investigations, including review of reports documenting the prelimi¬ 
nary investigation, conduct of follow-up interrogations and interviews, checks of 
criminal histories of suspects, conduct of follow-up searches, general procedures 
for forensic analysis, preparation of cases for court, apprehension of suspects, 
and establishment of linkages to other cases. Policies and procedures to be fol¬ 
lowed when using informants should also be spelled out, including controls for 
funds used to pay informants. 


V. APPROACHES TO MANAGING INDIVIDUAL CASES 

Many of the principles of managing criminal investigation units apply as well 
to the management of individual investigations. Both types of management re¬ 
quire the organization and prudent allocation of resources, implementation of 



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planning and control processes, and the exercise of skills of management and 
leadership similar to those needed to manage investigative units. 

The management of individual cases is different in several important ways, 
however. For any given investigative matter, operational guidelines applying to 
the conduct of individual cases will be pertinent, while administrative directives 
and guidelines such as those pertaining to recruitment and promotion will be 
irrelevant. The task at hand will usually be much more narrowly defined than in 
the management of an investigative unit: establish that a crime was committed, 
determine who did it, arrest the offender, and support the prosecution of the case 
with follow-up work as needed. Long-term strategic solutions often govern the 
management of investigative operations generally, with consideration given to 
technological, demographic and political trends. Short-term tactical solutions 
apply to solving individual cases. 

The management of individual investigations typically calls for a mix of 
three basic approaches described in detail below: case-oriented, offender-ori¬ 
ented, and problem-oriented preventive tactics. 

A. Case-Oriented Investigation 

Case-oriented investigation is the traditional reactive method of handling an un¬ 
solved crime, usually the result of a patrol officer’s response to a call for service. 
In case-oriented investigations the amount of investigative effort is determined 
primarily by the gravity of the offense rather than the dangerousness of the sus¬ 
pect or the relationship between the current crime and other matters of concern in 
the area. Serious crimes generally lend themselves to case-oriented investigation. 

In focusing on case seriousness, the investigator does not ignore offender 
information or information about problems in the area that may be related; such 
information can help lead to a solution of the crime and the arrest of the offender. 
However, details about the offender and the problems in the area that are only 
loosely related to the current case are not the primary information goals of case- 
oriented investigation. They are subordinated to the primary goal of case-oriented 
investigation: obtain information to solve the crime. Thus, the focus of case- 
oriented investigation is on the physical evidence, on information provided by 
victims and witnesses about suspects, on information about a suspect’s vehicle, 
on the recovery of stolen property, and on modus operandi information that can 
lead to a solution of the crime. 

Case-oriented investigations are often required even in environments that 
make full use of preventive strategies. Such investigations can, in any case, em¬ 
ploy modem methods of crime solving, including the use of solvability factors 
to focus resources on the most effective aspects of the case (Greenwood et al., 
1975). 



Managing Criminal Investigation 


115 


B. Offender-Oriented investigation 

Offender-oriented investigations focus on people who are known to have commit¬ 
ted specific crimes and may be suspected of having committed several others in 
the area. This tactic is more proactive than the case-oriented strategy; it antici¬ 
pates and heads off new crimes by targeting resources on people who have al¬ 
ready established themselves as offenders. The basic concept of an offender- 
oriented approach derives from a widely observed finding that a few offenders 
are responsible for a disproportionate number of crimes, and that investigative 
resources can be more productively applied to cases involving those offenders 
than to cases involving the less frequent and less dangerous offender. 8 

Investigators have long appreciated the value of offender-oriented investi¬ 
gation. The Federal Bureau of Investigation, following Henry Fielding’s pub¬ 
lished descriptions of wanted persons in The Covent Garden Journal and Allan 
Pinkerton’s publication of a “rogues’ gallery” of offenders, created its list of 
“Ten Most Wanted” in the United States in the 1930s. Several local police de¬ 
partments followed suit. Even prosecutors, who had traditionally focused on case 
seriousness rather than offender dangerousness, set up programs directed at repeat 
offenders and major violators in the 1970s. 9 While some of those lists and pro¬ 
grams targeted offenders who had been put there primarily because of a single 
crime rather than a series of crimes, the strategies were nonetheless offender 
rather than offense-based. The Metropolitan Police Department (MPD) of the 
District of Columbia effectively applied the offender-oriented approach in the 
mid-1980s, arresting hundreds of warrant violators and other chronic offenders 
using innovative surveillance and apprehension tactics. 10 

National data bases such as that maintained by the National Criminal Infor¬ 
mation Center (NCIC) can be especially helpful in supporting offender-based 
investigation strategies. Well-designed and carefully maintained modus operandi 
files often prove useful as well. 


8 In 1972, researchers at the University of Pennsylvania reported that 18% of all boys bom in Philadel¬ 
phia in 1945 accounted for 52% of all the offenses known to have been committed by the group. 
(Wolfgang et al., 1972) Similar results were found by the University of Pennsylvania team in a 
replication of the earlier research using the 1958 cohort of all children bom in Philadelphia (Wolf¬ 
gang, 1980) Comparable findings of disproportionality were obtained in a longitudinal study of 
offenders in London (Farrington, 1983), and in a study of offenders arrested in the District of 
Columbia during the period 1971-1975 (Williams, 1979). 

9 The federal government created a program in 1975 that provided financial support to local-level 
“career criminal'’ prosecution programs (Forst, 1995: 372-73). 

10 Police Foundation researchers analyzing data from the MPD's Repeat Offender Project (ROP) 
found that the number of offenders sentenced to prison increased substantially when targeted by 
ROP (Martin and Sherman, 1986). 



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0. Problem-Oriented Investigation and Crime Analysis 

One of the most significant strategies in contemporary policing is that of problem- 
oriented policing. Defined in 1979 by Herman Goldstein, problem-oriented polic¬ 
ing aims to shift from a predominantly reactive mode of policing to a more pre¬ 
ventive mode. It is one that identifies problems often leading to crime and nips 
them in the bud before they blossom into criminal episodes that police must later 
react to. Neighborhoods experiencing disorder and decline and crime hot spots 
are environments that lend themselves especially to problem-oriented policing 
strategies. 

The application of preventive, problem-oriented approaches to criminal in¬ 
vestigation is inherently limited. Criminal investigation is, after all, primarily 
about solving crimes that have already occurred. The investigator typically gets 
involved after preventive policing strategies have already failed. Experienced in¬ 
vestigators know, however, that unsolved crimes are problems, ones that lend 
themselves to sound problem-solving techniques. Problem-solving processes are 
called for, moreover, to reveal patterns of crime so that future crimes that follow 
such patterns can be prevented. 

Such a focus on crime prevention is neither new nor revolutionary. Munici¬ 
pal police departments in the United States routinely handled problems of public 
health and disorder in the 19th century. The Reform Era of the early 20th and the 
Professional Era of the mid-20th century effectively put an end to such preventive 
activity, focusing instead on random patrols designed to respond rapidly to calls 
for service and catch crimes in progress. Following the crime explosion of the 
1960s and research that revealed that random patrols were not as effective in 
preventing crime as had been widely assumed throughout most of the 20th cen¬ 
tury, police departments in Newport News (VA), Baltimore County (MD), and 
elsewhere began experimenting successfully in the 1980s and 1990s with pro¬ 
grams designed to take a more proactive position: to identify and solve problems 
in high-crime areas. 11 

While each “problem” has its unique elements, calling for any of several 
solutions drawn from a wide variety of options, the problem-oriented approach 
has identifiable stages that characterize virtually every application. Each stage is 
conducted with a distinct purpose: 

1. Define problems specifically so that they can be clearly understood and 
communicated to others. 

2. Collect information both from within and outside the usual department 
sources. 


Kelling and colleagues (1974) document the failure of a random patrol strategy in Kansas City 
in the 1970s. Eck and Spelman (1987) document successes with problem-oriented policing strate¬ 
gies in Newport News and Baltimore in the 1980s. 



Managing Criminal Investigation 


117 


3. Search for solutions and do so broadly, including both familiar and 
new sources. 

In the natural course of conducting a long series of investigations, detec¬ 
tives become aware of patterns that may provide opportunities for preventing 
future crimes. The identification of such patterns can often be more quickly and 
sharply identified through crime analysis, which is the process of identifying and 
describing trends and patterns in the commission of crimes based on analysis of 
data (Reuland, 1997; Reinier et al., 1977). 

Of particular interest in crime analysis are the following questions: Where 
have particular kinds of crimes been occurring? When have they been occurring: 
at particular times of day, day of week or month, season of the year, or under 
particular sets of circumstances? What specific similarities and dissimilarities 
exist among crimes that have been occurring at crime “hot spots”? Which of 
the similarities suggest a particular offender or group of offenders? Who might 
have additional information regarding these patterns, information that could solve 
crimes or lead to solutions? While the patterns unearthed by addressing such 
questions may occasionally be distinct enough to permit predictions of specific 
crime occurrences, they are more likely only to suggest areas that should be 
closely monitored at certain times. 

Specific data sources can be especially useful in crime analysis. Crime re¬ 
ports give basic information about the category of crime, time and place of occur¬ 
rence, and the victim. Dispatch records provide basic data about the response to 
each reported incident to which a unit or units were sent. Activity summaries 
give information about what was observed at the scene, names of witnesses and 
suspicious persons, and dispositions of each matter. Modus operandi files, used 
to help solve new crimes, give information about commonalities among crimes, 
both those committed by specific offenders known to the department and those 
committed by unidentified offenders. These various data sources typically vary 
in degrees of computer readability and reliability, depending on the department. 

Some jurisdictions have developed their own unique data systems useful for 
supporting crime analysis. In 1990 the State of Washington created the Homicide 
Investigation and Tracking System (HITS), designed to assist in solving homi¬ 
cides. Consisting of as many as 250 data elements in a single record, the system 
documents information about victims, crime scene details, and persons arrested 
for the crime (Keppel and Weis, 1993). 

Because a problem-oriented approach is more generalized than the by-the- 
book approach common in many criminal investigation settings, it has implica¬ 
tions for a different set of management conventions. It calls first for a more decen¬ 
tralized decision-making authority. Investigators and patrol officers cannot be 
expected to find creative solutions to problems when they must obtain approval 
from a supervisor at each and every decision point. For major decisions, approval 



118 


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will be needed, which suggests a second requirement: a problem-oriented strategy 
requires training and policy guidance of supervisors so that they can respond 
effectively to questions from less senior personnel. 

Perhaps most important is that a problem-oriented approach entails risks. 
It requires that management be willing to experience occasional failures, espe¬ 
cially time spent on activities that yield no apparent results, in order to prevent 
future crimes. When an officer’s, detective’s, or unit’s occasional failures out¬ 
weigh the value associated with problems identified and solved over a period of 
months, it becomes appropriate to review the specific problem-solving objectives 
and procedures employed by the individual or unit. Such a review may turn up 
one or more of several possible flaws: inadequate training in problem-solving, 
objectives that do not contribute significantly to the larger goals of the unit, insuf¬ 
ficient use of available information sources, or simply lack of commitment to 
the approach. In some cases, “problem-solving” may be found to be a ruse for 
malingering. 

When problem-solving or crime analysis unearths problems or patterns that 
may be endemic to the larger community, it is important that the insights be 
disseminated to others by way of internal memoranda, bulletins, and “hot 
sheets,” with maps as appropriate. Resources may be reallocated, decoys and 
stings may be established, targets may be hardened, and decisions and policies 
may be reconsidered in the light of such information. 


D. Finding the Right Mix 

There is no hard and fast rule about the appropriate blend of case-oriented, of¬ 
fender-oriented, and problem-oriented approaches to be used in any particular 
matter at hand. Investigation today is driven primarily by the seriousness of indi¬ 
vidual cases, but the goal of crime prevention dictates that, for cases of approxi¬ 
mately equal seriousness, resources be allocated first to the cases involving the 
most criminally active offenders and areas experiencing patterns of intensive 
crime activity. 


VI. MANAGING BY STAGE OF INVESTIGATION 

Although criminal investigation is not a production-line process, the various as¬ 
pects of investigation can be more clearly understood when the process of investi¬ 
gation is thought of in terms of a general model that has been effectively applied 
to processes that begin with raw material and end up with a tangible finished 
product. Such a model of criminal investigation as a “production line” has been 



Managing Criminal Investigation 


119 


developed by John Eck and Gerald L. Williams (1991). This model identifies six 
distinct stages of criminal investigation: 

1. Crime discovery 

2. Initial investigation 

3. Case screening 

4. Follow-up investigation 

5. Case preparation 

6. Prosecution 

Each of these six stages imposes a set of requirements for police, investiga¬ 
tors, and support personnel. Each stage is documented differently, and each calls 
for varying levels of involvement of victims and witnesses. 

The production elements associated with each stage of investigation are 
shown in Table 2. This model provides a convenient way of seeing criminal 


Table 2 Criminal Investigation as a Production Process 


Stage 

Police 

Personnel 

Reports 

Victim’s and 
Witness’s Role 

1. Discover crime: 

Operators, dis- 

Tape of initial 

Report the crime 

Report to police 

patchers 

communication 


2. Initial investiga- 

Patrol officers, 

Field or incident 

Provide informa- 

tion: Deter- 

sometimes de- 

report, notes 

tion 

mine basic facts 

tectives, tech- 



of case 

nicians 



3. Case screening: 

Investigation su- 

Screening form or 

Sometimes noti- 

Decide whether 

pervisor 

note on field re- 

fled of screen- 

to continue in- 


port 

ing decision 

vestigation 




4. Follow-up investi- 

Detective or pa- 

Supplemental re- 

Verify information 

gation: Pursue 

trol officer 

port 


leads 




5. Case preparation: 

Detective or pa- 

Arrest report 

No role 

Present case to 

trol officer 



prosecutor 




6. Prosecution: Pro- 

Detective or pa- 

Prosecutor’s re- 

May provide testi- 

vide additional 

trol officer 

port 

mony 

support as 




needed 




Source: Adapted from Eck and Williams, 1991:136. 




120 


Forst 


investigation as a process made up of distinct phases and how each phase of the 
process relates to every another phase. 


VII. SUMMARY 

The work of criminal investigators must be managed, just as must the work of 
doctors, professors, airline pilots, and patrol officers. Investigators are recruited, 
screened, compensated, and promoted typically through a set of formal human 
resource management procedures. They are then trained through both formal and 
informal processes. The role of an investigator is then framed in the organization 
chart of the detective bureau or precinct, and the investigator is assigned to cases 
through a set of formal and informal processes within that unit. Cases that are 
the most serious typically receive the most attention, but the allocation of re¬ 
sources should be driven by other factors as well: (a) expectations about the 
extent to which each prospective allocation is likely to increase the likelihood 
of arrest and conviction: (b) considerations about the dangerousness and criminal 
activity level of the suspected offender; and (c) opportunities to link this case to 
other cases, both solved and unsolved, so that multiple cases might be solved 
eventually. 

The effectiveness and efficiency with which an investigative unit conducts 
its work are driven both by the quality of its management system and the effec¬ 
tiveness of its leaders. The management system is shaped at the highest level by 
the clarity and appropriateness of its mission and goal statements, but it depends 
no less on how those statements are translated into specific objectives, guidelines, 
directives, and plans, and, in turn, how the execution of those plans is monitored. 
Effective communication and coordination are critical factors for the successful 
functioning of an investigative unit, both within the unit and with patrol units 
and investigators in other jurisdictions. 

The investigative unit’s management system and its leaders will influence 
the ability of the unit to reduce future caseloads, not only by solving cases at a 
higher rate but also by giving extra attention to offenders and situations that 
contribute disproportionately to the unit’s workload. 

Investigative units that fail to implement effective internal systems of man¬ 
agement and accountability are likely eventually to find themselves at the mercy 
of external forces: citizen complaints, media exposure of failures and accompa¬ 
nying public embarrassment, civil liability, and loss of pride and morale. The 
demands for shifts from bureaucratic styles of administration to more responsive, 
consumerist approaches can serve only to accelerate these pressures to improve 
criminal investigation and policing in general. 



Managing Criminal Investigation 


121 


REFERENCES 

Block, P. B., and Weidman, D. R. (1975). Managing Criminal Investigations , U.S. Depart¬ 
ment of Justice, Washington, D.C. 

Carter, D. L., and Sapp, A. D. (1991). Police Education and Minority Recruitment: The 
Impact of a College Requirement. Police Executive Research Forum, Washington, 
D.C. 

Cohen, B., and Chaiken, J. (1987). Investigators Who Perform Well , National Institute of 
Justice, Washington, D.C. 

Cordner, G. W. (1992). Human resource issues, in Police Management: Issues and Per¬ 
spectives., Police Executive Research Forum, Washington, D.C. 

Eck, J. E., and Spelman W. (1987). Who ya gonna call? The police as problem-busters, 
Crime Delinquency 25: 31-52. 

Eck, J. E., and Williams, G. L. (1991). Criminal investigations, in Local Government 
Police Management, 3rd ed. Geller, W. A., International City Management Associa¬ 
tion, Washington D.C. 

Farrington, D. P. (1983). Further Analysis of a Longitudinal Survey of Crime and Delin¬ 
quency, National Institute of Justice, Washington, D.C. 

Federal Bureau of Investigation (1966). Uniform Crime Reports, U.S. Department of Jus¬ 
tice, Washington, D.C. 

Forst, B. (1995). Prosecution and sentencing, in Crime, Wilson, J. Q., and Petersilia. J., 
eds., Institute for Contemporary Studies, San Francisco, CA. 

Fyfe, J. J. (1993). ‘Good’ Policing, in The Socio-Economics of Crime and Justice, Sharpe, 
M. E., ed., Armonk, NY. 

Goldstein, H. (1979). Improving policing: A problem-oriented approach. Crime Delin¬ 
quency, 25: 236-58, reprinted in Klockars, C. B., and Mastrofski, S. D., eds. (1991). 
Thinking About Police: Contemporary Readings, 2nd ed., McGraw-Hill, NY. 

Goldstein, H. (1990). Problem-Oriented Policing, McGraw-Hill, NY. 

Goleman, D. (1995). Emotional Intelligence: Why It Can Matter More Than IQ, Bantam 
Books, NY. 

Greenwood. P., Chaiken, J. M., Petersilia, J„ and Prusoff, L. (1975). The Criminal Investi¬ 
gation Process, Rand Corporation, Santa Monica, CA. 

Herzberg, F. (1968). One more time: How do you motivate employees? Harvard Bus. 
Rev. (January-February): 53-62. 

Kappeler, V. E. (1993). Critical Issues in Police Civil Liability, Wavelend Press, Prospect 
Heights, IL. 

Kelling, G. L., Pate, A., Dieckman, D., and Brown, C. E. (1974). The Kansas City Preven¬ 
tive Patrol Experiment: A Summary Report, Police Foundation, Washington, DC. 

Keppel, R. D., and Weis, J. G. (1993). Improving the investigation of violent crime: The 
homicide investigation and tracking system. National Institute of Justice Research 
in Brief, U.S. Department of Justice, Washington, D.C. 

Lynch, R. G. (1995). The Police Manager, C. J. Anderson, Cincinnati, OH. 

Martin, S. E., and Sherman, L. W. (1986). Selective apprehension: A police strategy for 
repeat offenders, Criminology 25: 155-173. 



122 


Forst 


Mayo, G. E. (1933). The Human Problems of an Industrial Civilization, Macmillan, New 
York. 

Morgan, J. B. (1990). The Police Function and the Investigation of Crime, Avebury, Al¬ 
dershot, England. 

Nowicki, D. E., and Sykes, G. W. (1991). Human resource management, in Local Govern¬ 
ment Police Management, 3rd ed., Geller, W. A., ed.. International City Manage¬ 
ment Association, Washington, D.C. 

Police Foundation (1972). Experiments in Police Improvement: A Progress Report, Police 
Foundation, Washington, D.C. 

Reinier, G. H., Sweeney, T. J., Waymire, R. V., Newton, F. A. Ill, Grassie, R. G., White, 
S. M., and Wallace, W. D. (1977). Integrated Criminal Apprehension Program: 
Crime Analysis Operations Manual, Law Enforcement Assistance Administration, 
Washington, D.C. 

Reuland, M. M. (1997). Information Management and Crime Analysis, Police Executive 
Research Forum, Washington, D.C. 

Souryal, S. S. (1995). Police Organization and Administration, 2nd ed., Anderson Publish¬ 
ing, Cincinnati, OH. 

Walker, S., Spohn, C., and Delone, M. (1995). The Color of Justice: Race, Ethnicity and 
Crime in America, Wadsworth Publishing, Belmont, CA. 

Williams, K. (1979). The Scope and Prediction of Recidivism, Institute for Law and Social 
Research, Washington, D.C. 

Wolfgang, M. E. (1980). Some new findings from the longitudinal study of crime, Austra. 
J. Forensic Sci. 13: 12-29. 

Wolfgang, M. E., Figlio, R. M., and Sellin, T. (1972). Delinquency in a Birth Cohort, 
University of Chicago Press, Chicago. 



7 

Traffic Operations 


Michael E. Donahue and Don A. Josi 

Armstrong Atlantic State University, Savannah, Georgia 


I. INTRODUCTION 

Police work is becoming increasingly complex at a time when governmental 
resources for policing are becoming scarce. Shrinking resources reflect the politi¬ 
cal realities of law enforcement agencies and the jurisdictions they operate within. 
Even successful programs have been curtailed or discontinued because of lack 
of funding. 

These factors create substantial strain on police administrators. All police 
agencies, from the smallest to the largest, are feeling these pressures, which sig¬ 
nify a new period in American policing, one in which attention must be focused 
on priority-setting, productivity, and operational effectiveness. One method used 
to improve efficiency in police organizations is a total reorganization of depart¬ 
mental operations. 

Police operations, in the contextual sense, refers to the various police ser¬ 
vices provided to citizens and the methods used by police agencies when deliv¬ 
ering these services. For example, traditional policing, by its very nature, is reac¬ 
tive. The police response to “calls for service” is directed at incidents that have 
already occurred, rather than emphasizing the prevention and elimination of 
crime problems. 

Police services are delivered by a variety of operational units within the 
police agency. The number and nature of these units depend on the department’s 
size, workload, and the community being policed. The vast majority of police 
services or operational activities emanate from three units: patrol, traffic, and 
criminal investigation. In the traditional sense, the patrol function is primarily 
responsible for answering calls, providing police services, and preventing crime. 


123 



124 


Donahue and Josi 


The traffic unit is responsible for reducing the frequency and severity of automo¬ 
bile crashes and facilitating the orderly flow of traffic. The investigative function 
is directed at solving crimes reported to the police, apprehending criminals, and 
recovering stolen property. 

How well officers assigned to the patrol unit perform newly acquired non- 
traditional tasks, as a result of departmental reorganization, is of fundamental 
interest to this chapter. 


II. TRAFFIC OPERATIONS 

An obvious function of municipal policing is to control and manage traffic. As 
problems generated by automotive transportation began to press forward and gain 
the attention of municipal authorities everywhere, highway officials and the pub¬ 
lic alike turned almost mechanically to the police for their solution under the 
illusion that enforcement would offer the answer. As a result, most police agen¬ 
cies have a traffic detail or unit. 

There is a financial incentive for traffic control since considerable revenue 
for the local and state government is produced through traffic citations; however, 
there are other reasons for the formation of traffic control units. More citizen 
deaths occur each year due to traffic accidents than as a result of crime. One 
major purpose of traffic control is to reduce the number of traffic-related injuries 
and deaths by enforcing traffic laws and providing a highly visible deterrent. 

Traffic enforcement does not merely entail investigating accidents or issu¬ 
ing traffic citations. Maintaining the visibility of police units and issuing oral and 
written warnings are all considered parts of enforcement. 

Another important function of traffic control is uncovering more serious 
criminal activity. The standard traffic stop results in numerous arrests for more 
serious crimes. The standard practice of stopping a driver for a traffic violation 
and running the license and registration through computers can reveal information 
concerning stolen autos, outstanding warrants, and criminal records. A surprising 
number of arrests for serious criminal activities have been initiated by standard 
traffic stops. 

The location of the police traffic control function in a police organization 
is a matter of major administrative importance. It would be an administrative 
error to believe that the patrol force is incapable of performing the traffic control 
function and that the problem of traffic control should only be attacked through 
the use of small, specialized traffic units. 

A major realignment of police departments is indicated in order to put every 
uniformed officer on patrol behind the traffic control problem (Weston, 1968). 
Calling on the patrol force for the performance of duties common to traffic serves 
the additional purpose of pointing up the importance of traffic work and gives 



Traffic Operations 


125 


it the stature necessary to secure the same degree of attention from the patrol 
force now given to crime and delinquency. 

A. Organization 

The function of traffic regulation and control is basically a responsibility of the 
patrol force. However, the specialized traffic unit has become a conventional 
fixture in the average American police department. Closely associated with this 
function is traffic accident investigation. Overspecialization is observable in 
many American police departments where, within the traffic division, special 
traffic accident investigation squads have been established. These squads usually 
are operated by transfers from the personnel strength of the patrol division. 

However, there is nothing particularly mysterious about the investigation 
of a traffic accident. Given intelligence and training, it matters little for the end 
result of a traffic accident investigation whether the officer is in a special accident 
investigation car at the time of the emergency call or in a patrol car on the beat. 
With proper recruiting and training standards for patrol officers, the necessity for 
specialized accident investigation squads is eliminated. 

Departmental policies generally dictate the level of traffic enforcement. In 
some instances, community pressure demands vigorous enforcement. In others, 
it is the decision of the police administrator. Some departments have formal or 
informal quotas on traffic tickets for officers (Wilson, 1973). 

B. Methods of Deployment 

It is no simple task to deploy effectively police enforcement personnel. Through¬ 
out much of the 20th century there was only one strategy: routine preventive 
patrol provided by officers in marked police vehicles assigned to a specific geo¬ 
graphic area or beat. Once beat boundaries were determined, usually based on 
some form of workload analysis, officers assigned to the beats were expected to 
patrol randomly or park and observe when not assigned calls for service. 

The efficacy of routine preventive patrol as a method of police deployment 
has been widely studied. Today there is widespread agreement that routine patrol 
is ineffective in deterring criminal activity. Patrol units seldom apprehend crimi¬ 
nals in the act of committing crimes and uncommitted patrol time tends to provide 
little benefit to the department or the community. Findings suggest that police 
should move away from the waiting and responding approach to a more focused 
and goal-directed set of tactics. Specialized patrol strategies, such as aggressive 
traffic enforcement, should be considered as more appropriate tools to combat 
crime problems. 

Within this context, it is perhaps more important to focus on how the police 
spend their time on patrol. Observations of police on duty in Kansas City and 



126 


Donahue and Josi 


elsewhere, show that much of the patrol officer’s time is spent on matters other 
than watching: conversations with other police officers, parking on side streets 
without talking to citizens, and even personal errands. 

In Kansas City, it was found that 60% of officers’ patrol time was uncom¬ 
mitted (Kelling et al., 1974). Cordner (1982) investigated patrol time in an un¬ 
named medium-sized city and likewise found the level of uncommitted time to 
be 46%. Whitaker (1982) examined the patrol time for 24 different departments 
and found that about two-thirds of the patrol time was uncommitted. 

Moreover, a recent study by the National Institute of Justice found that less 
than half of a patrol officer’s time in one large metropolitan police agency was 
committed to “downtime,” defined as time that an officer is committed to en¬ 
counters with the public or official police activity. Routine patrol (nonassigned 
activity) and personal time consumed the majority of an officer’s shift. In other 
words, patrol officers spent a great deal of time on self-directed activities. On 
the typical shift, “71 percent of an officer’s time was free from assignment from 
the dispatcher, supervisor, or other officer” (Mastrofski et al., 1998), suggesting 
that officers have blocks of time available during their shift for more innovative 
and aggressive crime deterrent functions. 

Fortunately, as part of the reorganization process, police administrators de¬ 
veloped a number of strategies for the deployment and use of patrol officers. 
Unfortunately, their overall value as a deterrent is questionable. This chapter 
looks at one study that addressed several issues arising from previous research 
on one of the more promising strategies: the deterrent effects of aggressive police 
patrol on traffic-related incidents. It reports on the results of a study conducted 
in Savannah, Georgia, designed to analyze the effects of a directed traffic enforce¬ 
ment program on the level and severity of these incidents. 

A successful traffic enforcement effort should convey to the motoring pub¬ 
lic and the criminal element that there is a strong, active law enforcement pres¬ 
ence. Directed traffic enforcement is where patrol officers are assigned to engage 
in highly visible, exacting compliance of traffic infractions within a specific loca¬ 
tion. High visibility in this study was characterized by frequent contacts with 
traffic violators. Officers, when working the targeted locations, made as many 
traffic stops as possible to emphasize police presence. It was not necessary that 
these contacts result in the issuance of citations. 

According to Warren and colleagues (1979), directed enforcement initia¬ 
tives have a number of common elements that support nontraditional patrol tech¬ 
niques. First, directed enforcement is aggressive and proactive; second, directed 
patrol officers use their noncommitted time to engage in specific law enforcement 
activity; third, directed patrol officers are given specific instructions directing 
their aggressive enforcement activities; and, fourth, these instructions are the re¬ 
sult of crime analysis efforts. 

Finally, Cordner (1981) examined the effects of a directed enforcement 



Traffic Operations 


127 


initiative in Pontiac, Michigan. He found that when directed patrol officers used 
aggressive patrol tactics such as field interrogations and vehicle stops, there was 
an appreciable decrease in several crime areas. 


III. REVIEW OF THE LITERATURE 

Can aggressive traffic enforcement by patrol officers reduce the number of traffic- 
related incidents? Perhaps no law enforcement topic has received more attention 
recently than what the police can do to reduce crime through preventive patrol 
techniques. 

Traditionally, police strategies to reduce crime have relied on uniformed 
patrol—and with good reason. The patrol function of a police department is nor¬ 
mally the organization’s largest unit, is usually first to respond to calls, and typi¬ 
cally make more felony arrests than do investigators. Moreover, the patrol func¬ 
tion was typically seen as a means of deterring criminal activity through the 
appearance of officers on the street. It was widely believed that the mere presence 
of an officer would deter an offender by creating the fear of being seen and caught 
(Gaines, 1996). 

The “preventive” value of police patrol was further enhanced by the writ¬ 
ings of O. W. Wilson. In a 1963 text on police administration, Wilson argued 
that the general deterrence of crime could be obtained through three police patrol 
tactics. First, police officers on patrol in automobiles could observe large parcels 
of territory and, in addition, would be visible to a greater number of citizens. 
Second, police officers in automobiles could respond quickly to calls for service, 
thus increasing the likelihood of apprehending the offender. Finally, if the of¬ 
fender had already fled the scene of the crime, police patrol vehicles could quickly 
fan out over the route of escape and facilitate capture of the offender. The Wilson 
approach presumed that citizens who observed police vehicles would feel safer, 
and, once again, offenders would be deterred for fear of apprehension. 

The first comprehensive and critical examination of “preventive” patrol 
was the 1972-1973 Kansas City Preventive Patrol Experiment (Kelling et al., 
1974). In this project the level of police patrol was doubled or tripled in five beats, 
eliminated in five beats, and held constant in five beats. The study concluded that 
neither eliminating nor tripling the level of patrol affected crime levels. That is, 
there were no statistically significant differences on the treatment area. 

While the results and methodology of this study were challenged (see Lar¬ 
son, 1976; Sherman, 1986), it nevertheless affected approaches to crime fighting. 
Many observers concluded that routine patrol made no difference, and both the 
amount of police patrol and the number of police officers could be reduced with 
no diminution in police service delivery or deterrence. 

Since the Kansas City study a number of studies have examined the effects 



128 


Donahue and Josi 


of the police on crime. Although routine patrol was not abandoned, scholars be¬ 
gan to examine the effectiveness of alternative police patrol strategies and particu¬ 
larly patrol strategies characterized as “aggressive,” such as field interrogation, 
saturation patrols, and traffic law enforcement. 

Although limited, there is evidence from police field experiments to support 
the belief that proactive policing may directly reduce criminal activity. Boydstun 
(1975), for example, found that “field interrogation,” the stopping and ques¬ 
tioning of suspicious persons, was a deterrent to certain “suppressible” crimes, 
such as robbery, burglary, theft, auto theft, assault, sex crimes, malicious mis¬ 
chief, and public disturbances. Another project suggested that police could be 
more effective by carefully managing uncommitted patrol time (Tien et al., 1978). 

Other studies have shown a negative relationship between crime rate and 
arrest rates, indicating that aggressive police practices contribute to reduced crime 
rates (Sjoquist, 1973; Tittle and Rowe, 1974). According to Gaines (1996), the 
results of these studies are weak because high crime rates may affect the police’s 
ability to respond to crime. Thus, the results could be reflecting workload rather 
than effectiveness. 

A few studies have concentrated on evaluating police activities, crime 
rates, and socioeconomic characteristics (Wilson and Boland, 1978; Sampson 
and Cohen, 1988). The results of these studies indicate that aggressive patrol 
strategies have an effect on crime. Specifically, the Wilson and Boland model 
suggested that communities with a more aggressive patrol strategy, as measured 
by traffic law enforcement, would experience lower levels of crime, measured, 
in this case, by the incidence of robbery. They argued that aggressive policing 
affects crime in two ways. First, aggressive patrol will reduce crime by convinc¬ 
ing offenders that they are more likely to be apprehended. Second, aggressive 
patrol and enforcement of the law will send a message to anyone committing a 
criminal act. 

A replication of the Wilson and Boland study was conducted by Sampson 
and Cohen (1988). They analyzed data from 171 American cities with populations 
of over 100,000 (a much larger sample than the original study), and found that 
aggressive policing had strong effects on robbery arrest certainty and a deterrent 
effect on robbery rates. 

Moreover, Wilson and Boland’s ideas about aggressive patrol and crime 
reduction seem to be supported by studies examining neighborhood disintegration 
(Skogan and Maxfield, 1981; Wilson and Kelling, 1982). These studies discussed 
how such disintegration results in an increased fear of crime. As a result of these 
studies, patrol has been redesigned to be a community builder and problem solver, 
which are central elements to today’s community policing paradigm. 

A number of more specific studies have concentrated on the linkage be¬ 
tween traffic enforcement and crime, with mixed results (Carr et al., 1980; Stuster, 
1995; Weiss and Freels, 1996; Stuster, 1997; Memphis Police Department, 1998). 



Traffic Operations 


129 


Carr et al. (1980) found no differences in the frequency of traffic accidents or 
the distribution of accidents involving property damage, fatalities, or injuries, 
when comparing a 2-month period of substantially increased citations for moving 
violations with a subsequent period of routine citation writing. 

In a 6-month study of two California cities, Stuster (1995) found significant 
reductions in larceny/theft and, to a lesser extent, a decline in part II criminal 
offenses. In Peoria, Illinois (Stuster, 1997), significant reductions in property 
crime, violent crime, and traffic accidents were attributed to community-oriented 
traffic enforcement, specifically increased citation traffic citations, driving under 
the influence (DUI) and vehicle-related arrests, and officer-initiated calls for ser¬ 
vice. 

However, an examination of the study shows severe flaws in the evaluation. 
For example, the study did not use a control group for comparison. There were 
no tests to determine whether any of the results were statistically significant. In 
addition, a review of the findings indicates that decreases in crime and accidents 
were not substantively significant, as the authors claim. Indeed, the declines prob¬ 
ably mirror those of other cities without the benefit of increased traffic enforce¬ 
ment. 

In contrast, two National Highway Traffic Safety Administration (NHTSA) 
funded studies (Dayton, OH, and Memphis, TN) that tested the impact of traffic 
enforcement on crime and traffic incidents reported no significant reductions or 
general deterrent effects on automobile crashes or general categories of crime. 
In sum, there are mixed data to support the assertion that aggressive traffic en¬ 
forcement encourages safer vehicle operation and deters criminals from commit¬ 
ting crimes. 

A major problem in testing a theory that associates traffic incidents with 
police strategies is finding valid and systematic measures of an aggressive strat¬ 
egy and the procedural arrangements that sustain it. We agree with Tien et al. 
(1978) that police could be more effective by carefully managing uncommitted 
patrol time. 

Thus far, efforts to see if traffic incidents are affected by differences in 
police presence, such as the realignment of patrol time-management as measured 
by the number of citations issued, have proved unsuccessful and problematic. 
Police officers exercise discretion in enforcement. It is not always necessary to 
issue a citation or arrest a violator to achieve the desired result. In many cases, 
warning drivers of the potential consequences of their actions will accomplish 
the desired goal. If general deterrence is enhanced through police visibility, then 
simply counting the number of citations issued or arrests made, rather than the 
number of vehicles stopped, fails to account for the wide variation in officer 
discretion and significantly underestimates the value of that measure. 

Additionally, there was always a risk of procedural violation or ‘ ‘extrale¬ 
gal” enforcement by the officer participant. For the purpose of this study, “en- 



130 


Donahue and Josi 


forcement’ ’ had two attributes: aggressive enforcement and routine enforcement. 
Each was measured by the number of police traffic stops whether or not violation 
citations were issued. It was expected that aggressive enforcement would be evi¬ 
denced by a substantial increase over routine enforcement (that which was nor¬ 
mally imposed) in the number of traffic stops. The magnitude of that increase, 
targeted at about 300% above average over the 6-month test period, was imple¬ 
mented in the four experimental areas only. Routine levels of enforcement were 
maintained throughout the rest of the city. 

Second, as rigorous as the previous studies had been, most did not use 
a no-treatment or control group. For this evaluation, researchers selected four 
multineighborhood areas, each with contiguous boundaries, one from each pre¬ 
cinct, as treatment locations (experimental), and four quasiequivalent areas as 
no-treatment locations (control). The addition of the control groups enhanced the 
researchers’ ability to control for a number of threats to validity. 

Finally, none of the prior studies examined the operational aspects of this 
issue. For example, if traffic enforcement is a deterrent, then how should it 
be delivered? Should traffic specialists be used or should patrol officers use un¬ 
committed patrol time to make routine traffic stops in their assigned areas or 
beats? 

The Savannah study was designed to address these questions and ascertain 
through controlled research if an increase in the level of traffic enforcement pro¬ 
vided a viable and effective means of reducing the number of traffic-related inci¬ 
dents. A correlation between aggressive traffic patrol and a reduced level of traffic 
incidents would support the assumption that aggressive traffic enforcement 
should be a primary police activity to reduce traffic problems. 


IV. METHOD AND DESIGN 

In 1997, the City of Savannah received a grant from the National Highway Traffic 
Safety Administration (NHTSA) to implement and evaluate the effects of an 
enhanced traffic enforcement program on traffic-related incidents. In this context, 
the term enhanced referred to a systematic increase in the number of vehicle 
stops for traffic violations by patrol officers without additional or specialized 
personnel or resources. The increased contact with traffic violators did not neces¬ 
sarily result in the issuance of citations. 

The main objective of this study was to determine whether and to what 
extent a dedicated, well-focused, 24-hour, traffic enforcement effort performed 
by patrol officers could reduce auto crashes, injuries, and fatalities. A secondary 
concern was whether enhanced traffic enforcement had an impact on crime, par¬ 
ticularly selected part I crimes (robbery, aggravated assault, burglary, larceny, 
and motor vehicle theft) and part II Index offenses (simple assault, possession 



Traffic Operations 


131 


of stolen property, vandalism, drug offenses, liquor law violations, obstruction 
of justice, weapons violations, loitering, DUI, and criminal trespass). 

The City of Savannah is divided into four major patrol precincts. The pre¬ 
cincts, which handle a similar number of calls for service, are divided into 12 
service areas, which are further divided into 95 neighborhoods of varying geo¬ 
graphic size and workload. 

The research team hypothesized that aggressive traffic enforcement, mean¬ 
ing an increase in traffic stops, by the Savannah Police Department in selected 
target areas would result in a decline in the number of both injury and noninjury 
traffic crashes in those areas relative to the those areas receiving routine patrol. 
In addition, the authors postulated that aggressive traffic enforcement in the ex¬ 
perimental areas would result in a decline in the frequency of selected part I 
crimes and part II offenses. 

Aggressive enforcement focused on all possible violations of traffic laws, 
known in the department as “zero tolerance,” but targeted, in particular, (a) 
speed enforcement (speeding); (b) occupant protection enforcement (seat belts); 
(c) intersection enforcement (running stop signs and traffic lights); (d) DUI en¬ 
forcement; and (e) license and registration enforcement. As a measure of the 
degree to which enforcement was conducted, the number of traffic stops was 
recorded monthly for each of the experimental and control areas for the 6 months 
of the administration of the treatment. 

The evaluation staff conducted a quasiexperimental research design to test 
these hypotheses and, in conjunction with the police department, designated small 
geographic areas, known as reporting districts, as its base. From this citywide 
map of 656 districts, staff selected four areas of aggregated districts, one from 
each of the four precincts, as experimental areas. 1 Within each precinct, a compa¬ 
rable control aggregate of districts was selected. 2 Routine traffic enforcement 


1 The selection of these districts required consultation with the Savannah Police Department (SPD) 
Patrol Bureau Commander, the four precinct commanders (captains), and the Director of the SPD’s 
Planning and Research Unit. The control and experimental areas within each of the four precincts 
possessed comparable mixes of commercial property, as well as high- and low-density residential 
property. More important, the control and experimental areas in each of the precincts had a substan¬ 
tial and comparable incidence of crime and traffic crashes over a 3-year period. 

2 For several years the City Traffic Engineering Department compiled monthly data for use by SPD’s 
Traffic Unit on the 10 most hazardous intersections in the City of Savannah. The Engineering 
Department based its hazard rating on the number of crashes in the vicinity of those intersections. 
A ranking of these intersections (with frequency counts for each) is sent to the SPD each month. 
Using these data, the Traffic Unit is able to make informed decisions regarding the deployment of 
traffic control resources. SPD and the evaluation staff were careful to exclude any of these intersec¬ 
tions from either the control or experimental areas. This was done to remove extreme measures 
from sets of observations (and thereby control for a possible threat of statistical regression to the 
mean) and as a way of promoting baseline comparability for the eight study areas. 



132 


Donahue and Josi 


efforts were directed toward the alleviation of specific traffic safety problems. 
Their impact on criminal activity, where noted, was a byproduct of this effort. 
Aggressive traffic enforcement, on the other hand, consisted of highly visible 
patrol officers performing much more frequent contacts with traffic violators (an 
average increase of 474% over previous activity), to convey the message to the 
public of a strong law enforcement presence. There was, however, little guidance 
from previous research on what levels might provide credible visibility and thus 
deterrence. 

In this study, the command staff of the Savannah Police Department, the 
evaluation research staff, and representatives from NHTSA determined the mag¬ 
nitude of aggressive enforcement. It is important to note that the project only 
employed normally assigned beat patrol personnel, using standard patrol proce¬ 
dures without incentive pay or redeployment. Traffic enforcement procedures and 
activity remained at ‘ ‘routine’ ’ or current levels of enforcement in the four control 
areas. The project was conducted without any major public information or educa¬ 
tion support. Primary responsibility at the agency level was assigned to the pre¬ 
cinct commanders and their assigned designates. 

Data were compiled and analyzed monthly on the indicators of the indepen¬ 
dent variable (number of traffic stops) and on the dependent variables (crashes 
without injuries, crashes with injuries, and fatalities and selected part I and II 
index offenses). Using t-tests, the authors examined the results obtained within 
the experimental group to determine if any significant differences were seen when 
monthly data were compared to historical data. In addition, the differences be¬ 
tween the experimental and control group results (between-group comparisons) 
were analyzed. 

V. RESULTS 

Table 1 illustrates the distribution of traffic stops (the independent variable) in 
the experimental and control areas over the duration of the study. The pretreat¬ 
ment traffic stop results for the experimental and the control areas in all four 
precincts are based on an average, rounded to the nearest whole number, of the 
preceding 3 years for the particular month in question. The figures in parenthesis 
for posttreatment experimental and posttreatment control areas constitute actual 
frequency counts for that particular month. 3 


3 For example, the 54 pretreatment traffic stops for February, 1998 (the first treatment month of the 
study), represents the average number of traffic stops conducted by SPD patrol officers assigned 
to that area in February, 1995, 1996, and 1997. The 160 posttreatment traffic stops are the actual 
frequency count for February, 1998. Likewise, the 23 pretreatment traffic stops in the corresponding 
precinct 1 control area are the average for February over the previous 3 years. The actual number 
of stops in the area for February, 1998, was 33. 



Traffic Operations 


133 


As indicated, there was little variation in the average number of stops in 
the pretreatment experimental or control areas. There was likewise little variation 
in stops for the control areas throughout the duration of the study. As can be 
seen, the intention to elevate sharply the number of traffic stops within the four 
experimental areas over the historical average was met. For example, over the 
6-month period of the study, patrol officers assigned to the experimental area in 
precinct 1 increased the number of traffic stops an average of 292%, from a base 
of 345 to a posttreatment figure of 1351. 

Table 2 details the aggregate posttest mean comparisons of traffic stops 
in the experimental (treatment) and control areas. As indicated, while aggres¬ 
sive enforcement in the treatment areas accelerated sharply, peaking in May, 
the line indicating the frequency distribution for the control areas is virtually 
flat. 

The average monthly number of traffic stops for the combined experimen¬ 
tal areas during the 6-month study period was 202, compared to 35 for the 
control areas. Over the entire 6-month period of this study, patrol officers aver¬ 
aged 474% more stops in the experimental areas than in the corresponding con¬ 
trol areas. 


A. Aggregate Data: Injury and Noninjury Traffic Crashes 

Table 3 details pretest/posttest between-group mean comparisons for injury and 
noninjury crashes. There were no statistically significant differences between the 
frequency of injury crashes in the treatment areas and injury crashes in the control 
areas. The monthly average difference between the two groups was only 0.2 
crashes. Moreover, there were no statistically significant differences in terms of 
crashes without injuries between the treatment and control groups. The monthly 
average for the experimental areas was 11.35; for the control areas the figure 
was 11.85. 

B. Secondary Findings 

1. Paired (Pre/Poststudy) t -Tests for Experimental and 
Control Areas 

Research staff conducted paired t-tests for pretreatment and posttreatment means 
for select categories of part I and part II offenses for all precinct experimental 
areas as well as for all precinct control areas. 

a. Part I Offenses 

As indicated in Table 4, part I paired f-tests for the combined experimental areas 
show that both burglary and larceny had statistically significant declines (p = 



CO 

■P* 


Table 1 Experimental and Control Areas Pre- and Posttreatment Comparisons by Precinct, 1998 



Feb. 

Pre(Post) 

March 

Pre(Post) 

April 

Pre(Post) 

May 

Pre(Post) 

June 

Pre(Post) 

July 

Pre(Post) 

Totals 

Pre(Post) 

Precinct 1 

Experimental 

Crash w/injury 

3(4) 

1 (2) 

2(1) 

4(1) 

3(2) 

5 (3) 

18 (13) 

Crash w/o injury 

9(7) 

10(11) 

13(8) 

15 (6) 

11 (8) 

10 (13) 

68 (53) 

Traffic stops 

54 (160) 

61 (196) 

49 (305) 

60 (278) 

58 (237) 

63 (175) 

345 (1351) 

Control 

Crash w/injury 

2(0) 

0(1) 

2(4) 

3 (0) 

1 (0) 

2(0) 

10 (5) 

Crash w/o injury 

8(7) 

11 (9) 

12(5) 

10 (8) 

12(7) 

10 (12) 

63 (48) 

Traffic stops 

23 (33) 

35 (32) 

31 (40) 

32 (29) 

37 (26) 

36 (33) 

194 (193) 

Precinct 2 

Experimental 

Crash w/injury 

3(3) 

4(5) 

4(4) 

3(3) 

3(2) 

2(5) 

19 (22) 

Crash w/o injury 

14 (12) 

16 (14) 

15 (21) 

16(17) 

21 (18) 

15 (8) 

97 (90) 

Traffic stops 

61 (159) 

69 (201) 

53 (371) 

60 (323) 

76 (216) 

80 (132) 

399 (1402) 

Control 

Crash w/injury 

3(1) 

3(3) 

3(0) 

4(3) 

5(3) 

2(6) 

20 (16) 

Crash w/o injury 

10(8) 

13 (13) 

12 (12) 

14 (17) 

13 (12) 

11 (17) 

73 (79) 

Traffic stops 

40 (54) 

48 (47) 

46 (53) 

49 (82) 

66 (64) 

60 (52) 

309 (352) 


Donahue and Josi 



Precinct 3 
Experimental 


Crash w/injury 

1 (0) 

1 (0) 

1 (2) 

0(0) 

1 (1) 

1 (0) 

5(3) 

Crash w/o injury 

5(6) 

4(5) 

5(4) 

5(5) 

5(6) 

5(9) 

29 (35) 

Traffic stops 

22 (50) 

25 (107) 

24 (127) 

27 (256) 

35 (117) 

35 (94) 

168 (751) 

Control 

Crash w/injury 

2(2) 

3(3) 

1 (2) 

2(0) 

2(1) 

2(2) 

12 (10) 

Crash w/o injury 

8(5) 

8(7) 

9(8) 

13 (10) 

9(3) 

10 (16) 

57 (49) 

Traffic stops 

16 (21) 

21 (26) 

24 (32) 

22 (27) 

32 (22) 

21 (15) 

136 (143) 

Precinct 4 

Experimental 

Crash w/injury 

3 (2) 

2(1) 

2(1) 

2(0) 

2(3) 

4(1) 

15 (8) 

Crash w/o injury 

12 (22) 

15 (14) 

13 (13) 

15(11) 

18 (15) 

13 (20) 

86 (95) 

Traffic stops 

51 (108) 

58 (248) 

65 (228) 

56 (278) 

70 (297) 

66 (186) 

366 (1341) 

Control 

Crash w/injury 

2(7) 

3(4) 

2(3) 

4(4) 

3 (2) 

5 (0) 

19 (20) 

Crash w/o injury 

14 (19) 

16 (22) 

11 (ID 

15 (15) 

14 (20) 

16 (21) 

86 (108) 

Traffic stops 

22 (22) 

20 (35) 

26 (37) 

32 (21) 

27 (16) 

36 (46) 

163 (177) 


Traffic Operations 



W 

o> 


Table 2 Experimental and Control Group Posttest Comparisons: Traffic Stops, 1998 



Feb. 

March 

April 

May 

June 

July 

Avg. 

Posttest mean: Exp 

119.25 

188 

257.75 

283 

216.75 

146.75 

202.08 

Posttest mean: Con 

32.5 

35 

40.5 

34.75 

32 

36.5 

35.2 

Difference 

86.75 

153 

217.25 

249 

184.75 

110.25 

166.88 

% Increase: Exp 

266.9 

437.1 

535.8 

716.5 

577.3 

402.1 

474.1 

Significance 

0.019 

0.002 

0.006 

0.0001 

0.003 

0.003 

0.0008 


o 

</> 


Donahue and 



Table 3 Traffic Crashes Frequency Distribution: Experimental vs. Control Areas 


Crashes involving injury 

Feb. ’98 

March 

April 

May 

June 

July 

Avg. 

Posttest mean/exp 

2.25 

2 

2 

1 

2 

2.25 

1.93 

Posttest mean/con 

2.5 

2.75 

2.25 

1.75 

1.5 

2 

2.13 

Difference 

0.25 

0.75 

0.25 

0.75 

0.5 

0.25 

0.20 

Significance 

0.893 

0.571 

0.823 

0.571 

0.537 

0.8939 

0.828 


Crashes not involving injury 
Posttest mean/exp 

11.75 

11 

11.5 

9.75 

11.75 

12.5 

11.35 

Posttest mean/con 

9.75 

12.75 

9 

12.5 

10.5 

16.5 

11.85 

Difference 

2 

1.75 

2.5 

2.75 

1.25 

4 

0.5 

Significance 

0.693 

0.673 

0.554 

0.457 

0.796 

0.2699 

0.888 


Traffic Operations 



Table 4 Part I Offense Paired t-Tests for 6-month Study Period 


Experimental Groups 

Horn 

Rape 

Rob 

AAss 

Burg 

Larc 

AT 

Pretest mean 

0.10 

0.82 

3.35 

4.10 

13.12 

35.65 

6.63 

Posttest mean 

0.17 

0.67 

3.16 

2.17 

8.33 

20.00 

5.50 

t-Test 

0.34 

0.50 

0.53 

1.83 

2.84 

2.73 

0.99 

Significance 

0.748 

0.636 

0.619 

0.127 

0.036 

0.041 

0.364 

Control Groups 

Pretest mean 

0.22 

1.12 

4.35 

4.62 

18.27 

37.95 

7.47 

Posttest mean 

0.33 

0.83 

3.00 

2.67 

13.33 

35.33 

6.83 

T-test 

-0.59 

1.79 

1.50 

2.46 

4.64 

0.36 

0.37 

Significance 

0.583 

0.133 

0.195 

0.058 

0.010 

0.734 

0.729 


Horn, homicide; Rob, robbery; AAss, aggravated assault; Burg, burglary; Larc, larceny; AT, auto theft. 


o 

(0 


138 Donahue and 



Traffic Operations 


139 


0.036 and p = 0.041 respectively). Burglary in the experimental groups fell 
36.5% from a monthly average of 13.12 to 8.33, or a decline of approximately 
five reported burglaries per month. For the control areas, burglary showed a statis¬ 
tically significant average monthly decrease (4.64 incidents) from the historical 
average of 18.27 to 13.33 reported incidents over the duration of the 6-month 
study period (p = 0.01; two-tail test). The incidence of the remaining part I 
offenses remained fairly consistent. 

The other five part I offenses (homicide, robbery, aggravated rape assault, 
and auto theft) showed little variation or had baseline counts too small to warrant 
discussion. It was not expected, however, that incidence rates for two of these 
categories, homicide and rape, would be affected by the treatment. 

As indicated in Table 4, change from pretest to the posttest measures in 
the Part I offense of larceny in the experimental areas was statistically significant. 
The greatest declines were observed in precincts 1 and 3. 

In Precinct 1, larcenies fell from an historic average of 64.1 to a posttreat¬ 
ment mean of 23, a decline of 65.1%. In Precinct 3, reported larcenies showed 
a drop of 42.7%, from 45.4 to 26. Precinct 4 followed closely,with the number 
of reported larcenies falling from 60.7 to 35 during the treatment period, a de¬ 
crease of 42.3%. The smallest drop noted was in precinct 2 from a pretest average 
of 53.7 per month to a posttest average of 36 per month, or a reported 33% 
decline. 

Burglary, like larceny, showed a statistically significant decline in the ex¬ 
perimental areas. The greatest declines were observed in precincts 1 and 4. In 
precinct 4, burglary dropped from a pretreatment mean of 13.3 to a posttreatment 
mean of four: a 69.9% decrease. Precinct 1 showed a 42% decline, followed by 
precinct 3 (-27.2% percent) and precinct 2 (-20.7%). 

b. Part II Offenses 

Paired t-tests for pretreatment and posttreatment means for categories of part II 
offenses for all precinct experimental areas (combined) as well as for all precinct 
control areas (combined) indicate a statistically significant decline for simple 
assault in both the experimental and control areas. For the experimental groups, 
simple assaults fell from a monthly average of 45.35 to a postmean of 34: a drop 
of 11.35 incidents or 25% (p = 0.006). In the control areas, simple assaults 
dropped from an historic monthly average of 47.55 incidents to 40.52: a decline 
of 7.03 or 14.8% (p = 0.037). 

Two other part II offenses showed statistically significant declines in the 
experimental areas (weapons violations, p = 0.002; loitering, p = 0.006). How¬ 
ever, the baseline counts for these two offenses are too small to be meaningful. 
In short, neither drop was substantively significant. 



140 


Donahue and Josi 


VI. CONCLUSIONS 

This study of the impact of aggressive traffic enforcement on traffic crashes used 
a quasiexperimental design to test two hypotheses. The research team wanted to 
find out if variations in traffic crashes and crime were associated with variations 
in police traffic stops. 

A. Experimental and Control Areas 

Both an experimental and a comparable control area were constructed from city 
reporting districts in each of the police department’s four precincts. Considerable 
effort was made to match each experimental, “treated” area with its control, 
“nontreated” area in the same precinct in such terms that most threats to internal 
validity could either be ruled out or, at a minimum, accounted for. Important 
baseline measures, such as the average monthly traffic stops and traffic crashes, 
served as the chief criteria for matching the control area with each experimental 
area. 

The intended thrust of this design was to impose an accelerated but steady 
dosage of the independent variable (more frequent traffic stops) in the four experi¬ 
mental areas. The police department increased stops in those areas by an average 
of 474% over the historic baseline average for control areas (167 per month 
versus 35 per month). Concerning the experimental areas, staff used paired f-tests 
to examine within-group differences between the pretreatment historical monthly 
averages and the posttreatment monthly frequencies for all indicators of the inde¬ 
pendent variable (traffic stops) and dependent variables (crime and crashes). 

Next, members of the research staff conducted between-group analysis us¬ 
ing independent t-tests to compare the posttreatment means in the treatment areas 
with like measures in the control areas. Lastly, staff compared pretreatment and 
posttreatment means of the control areas to make certain that the anticipated 
stability in those data had held throughout the duration of the treatment. The 
treatment of substantially increased traffic stops in the experimental areas lasted 
for 6 months, February, 1998, though July, 1998. 

Before drawing conclusions from this investigation, it is important to point 
out the design weaknesses. First, treatment and control areas were small and, 
in some cases, did not yield sufficiently large baseline frequencies to allow for 
meaningful comparison of posttreatment outcomes. In some cases, this contrib¬ 
uted to uninterpretable results. 

The decision on area size, however, was made by the host agency. Savan¬ 
nah Police Department, for compelling reasons. Expanding the territory of the 
treatment areas would have diluted manpower deployment so as to compromise 
any credible and presumably effective threat of deterrence. Making available ad¬ 
ditional staff from traffic or other specialized units in the department to the treat- 



Traffic Operations 


141 


ment areas was not done because such action would violate a guiding principle 
for this research: that only patrol officers could affect increased enforcement. In 
short, only those officers normally assigned to the beats falling in the treatment 
areas increased traffic stops. 

Second, the study period should have been extended several months to 
allow for the development of more stable trends. The National Highway Traffic 
and Safety Administration (NHTSA) request for proposal set a 6 month limit on 
the imposition of treatment in the experimental areas. The agency believed, and 
plausibly so, that it would be too taxing on a department to accelerate and main¬ 
tain a high-intensity traffic enforcement strategy for a longer period of time. This 
view was supported by NHTSA’s previous experience with this kind of research 
in other jurisdictions. Moreover, management personnel from the Savannah Po¬ 
lice Department anticipated that some residents and businesses would complain 
about overenforcement. 

As researchers on this topic, it is our contention, even with these pressures 
to shorten the treatment administration, that lengthening the study period, thus 
the treatment dosage, would have permitted analysis of the data with more robust 
statistical procedures. Tests such as time-series analysis could have been used to 
look for any correlation(s) between the independent and dependent variables over 
time. This, however, was not done. 

Third, the acceleration in aggressive patrol should have occurred at higher 
levels (and a more stable rate of traffic stops maintained) throughout the duration 
of the study. Doing so would have allowed us to gauge more confidently the 
impact of increased stops on the dependent variables. This occurred in only one 
of the four treatment groups (precinct 4). Although enforcement was maintained 
well above the historical levels in the other three treatment areas, it peaked 
sharply and abated rather quickly at about the midpoint (months 3 or 4, depending 
on the precinct). 

The precipitous decline in the number of traffic stops within the three re¬ 
maining treatment areas (precincts 1, 2, and 3) were due to several factors includ¬ 
ing a lack of sufficient incentives and fatigue on the part of the officers involved. 
This was somewhat ameliorated in one of the precincts by seeking only volunteers 
to work those beats located in the treatment area(s). One can only speculate if 
this deployment strategy would have made a difference in maintaining a greater 
and more stable rate of traffic stops in the other precincts. 

Finally, the equipment necessary to administer effectively the treatment in 
the experimental areas (e.g„ radar, breathalyzer equipment, in-car video cameras, 
and the like) were late in arriving by as much as 2'k months into the project, 
depending on the precinct. Concomitantly, training with this equipment was de¬ 
layed. This explains, to some extent, the tardiness in the acceleration of aggres¬ 
sive enforcement until the second or third months, again, depending on the pre¬ 
cincts. 



142 


Donahue and Josi 


However, this design also had a number of strengths. Perhaps the most 
notable improvements in this design over others used to study this phenomenon 
were the selection of comparable treatment (experimental) and control areas and 
the generation of historical comparison data for both. Pretreatment averages for 
stops and crimes were calculated from the frequency counts for each month from 
February through July for 3 years. This allowed the staff to pair experimental 
areas and control areas that were similar in terms of the history of traffic stops 
and frequency of selected crimes. It also permitted the two kinds of analysis 
referred to above: the comparison of pretreatment averages with posttreatment 
averages within the experimental groups and within the control groups (within- 
group comparisons); and the comparison of pretreatment monthly and cumulative 
averages in the treatment areas with those of the control areas (between-group 
comparisons). 

In addition, seasonal anomalies, which may have confounded the results, 
were controlled for. The most obvious were the St. Patrick’s Day celebration in 
March and the Coastal Scottish Games in May. The former, reputed to be the 
second largest parade of its type in the United States, typically attracts about 
300,000 celebrants for several days of public frivolity. The second is considerably 
smaller and isolated to one part of the city but nonetheless places a sizable drain 
on police resources by redirecting a large cadre of officers to providing security 
for the Games. In any event, because 3-year monthly averages were used in the 
analysis, these seasonal events were factored into the baseline data prior to con¬ 
ducting the study. 

At first blush one might object that the comparability of the control and 
experimental groups cannot be so confidently asserted because no effort was 
made to match reporting districts along demographic and socioeconomic dimen¬ 
sions that may affect crime (e.g., race age, sex, unemployment, female-headed 
households, neighborhood blight, and so forth). 

Although these data were available in the aggregate for the 12 city planning 
districts, which are comprised of hundreds of the reporting districts that made 
up our study areas, the risk of an ecological fallacy prevents the inference that 
individual reporting districts reflect the general characteristics of the districts. 
Nonetheless, the selection of study areas was done in such a way as to promote 
the ecologically validity of standing neighborhoods. That is to say, whole neigh¬ 
borhoods were included in our sample of study areas and are thus likely to share 
a number of similar demographic and socioeconomic circumstances. 

Moreover, while the literature suggests that police may have an impact on 
crime, especially by targeted, saturated efforts, they have no impact on the condi¬ 
tions that spawn criminality. It seems reasonable to assert that areas with compa¬ 
rable street crime may have comparable conditions that foster those offenses. In 
that sense, crime was, for this study not only a measure of interest to interpret 



Traffic Operations 


143 


given the impact of a treatment variable but also a surrogate measure for neigh¬ 
borhood comparability. 

B. Interpretation of Findings 

As noted in our review of the literature, there are mixed findings about the asser¬ 
tion that aggressive traffic enforcement deters the commission of crimes. Our 
study attempted to address this most fundamental of questions regarding the util¬ 
ity of police visibility by employing a quasiexperimental design. We came to the 
following conclusions regarding the 6-month treatment period. 

First, there were no statistically significant declines in traffic crashes with 
injury or traffic crashes without injury whether by treatment area, by month, or 
cumulatively. Indeed, the precinct 2 treatment area showed a slight increase in 
injury crashes and the experimental areas in precincts 1,3, and 4 showed modest 
increases in noninjury crashes. None of these was statistically significant. At 
bottom, nontreatment areas experienced, on the average, no more or fewer traffic 
crashes than areas with heightened enforcement activity. 

Second, part I offenses (in the aggregate) showed downward trends in the 
four experimental areas; statistically significant reductions were observed in three 
of the four (precinct 1, 3, and 4 treatment areas). These declines were accounted 
for by statistically significant drops in larceny and burglary. There was no corre¬ 
sponding statistically significant drop in larceny in the control areas, although 
there was a slight decline (about two per month). 

Third, an analysis of burglary showed a statistically significant average 
monthly decline of about five offenses in both the combined experimental and 
the combined treatment areas. 

Fourth, part II offenses in the aggregate declined in each of the treatment 
areas but all failed to show statistically significant decreases. Nonetheless, this 
result masked a statistically significant decline in simple assaults when the data 
were disaggregated. In addition, there were other statistically significant (but in¬ 
substantial) drops in other part II offenses (e.g., weapons violations and loitering). 
An analysis of disaggregated part II offenses in the combined control areas also 
indicated a statistically significant drop in simple assault. A statistically signifi¬ 
cant but insubstantial rise (an average of two per month) in obstmction was found 
in the control areas. 

What do these findings mean? We believe that before any conclusive evi¬ 
dence on the efficacy of traffic enforcement can be advanced, the level of enforce¬ 
ment in any such study must be increased and sustained for its duration. That level 
and the percentage of increase are still open to debate. We would recommend a 
figure somewhat above the average of 400-500% (of the base) found in this 
study. In a few instances enforcement exceeded these levels. For example, in the 



144 


Donahue and Josi 


relatively small precinct 3 treatment area, stops soared from 27 to 256 (848%) 
but, as the data show, this was exceptional. 

It may simply be that the kind of enforcement activity required to make 
both a statistical and substantive difference is beyond the resource capabilities 
of most police departments. Clearly, this was one plausible interpretation of the 
Kansas City Patrol Experiment; to wit, the doubling and tripling of marked patrol 
units in the experimental areas simply was not enough to pose a credible deterrent 
effect. In the end, perhaps no one noticed. 

The host agency in this study provided accelerated enforcement without 
the assistance of specialized units. It relied on existing patrol manpower alloca¬ 
tions in those beats designated in the treatment areas to conduct increased 
stops. What was found, among other things, was that this level of enforcement 
could not be maintained in any of the precincts for the duration of this study. 
One obvious solution to deficiencies in traffic enforcement includes the re¬ 
assignment of the department’s specialized traffic unit to the precincts to 
boost enforcement efforts. However, the likelihood that it would be co-opted by 
precinct commanders into the performance of nonrelated traffic functions 
precludes this as a serious consideration. Given the competing demands on pa¬ 
trol personnel to answer calls for service as the highest priority, this fear is not 
unrealistic. 

The overall declines (though not statistically significant) in part I offenses 
in the treatment areas likewise suggest that extended treatment dosages, larger 
treatment dosages, or larger treatment areas with proportionate dosages may be 
necessary to test the hypothesis of the impact of targeted, selective enforcement 
on crime. This may be particularly informative regarding the impact of such on 
larceny and burglary, crimes that, at least logically, would be discouraged by a 
targeted, concentrated police action. 

After saying this, however, it is not clear whether such experimental exten¬ 
sions could be expected to have an impact on these offenses over the long term, 
even if aggressive traffic enforcement could be sustained. This research simply 
cannot answer that question. Although our findings would seem to support, at 
least in part, the Wilson and Boland thesis that targeted patrol efforts influence 
selected criminality, these findings are not conclusive but only suggestive. It is 
equally important to recall that incidents of burglary and larceny also fell in the 
control groups, the first showing a statistically significant drop. The short time 
frame within which the treatment was administered precluded the development of 
any long-term ends, either declines or increases, in the measures of the dependent 
variables. 

From a management perspective, it is very unlikely that patrol deployments 
can consistently and persistently conduct aggressive traffic enforcement beyond 
very short time horizons without infusions of materiel, staff, and incentives. Be- 



Traffic Operations 


145 


yond that, it remains in doubt whether any desirable effects that may arise would 
have durability. 


REFERENCES 

Boydstun, J. (1975). San Diego Field Interrogation: Final Report, The Police Foundation, 
Washington, DC. 

Carr. A. F., Schnelle, J. F., and Kirchner, J. F. (1980). Police crackdowns and slowdowns: 
A naturalistic evaluation of changes in police traffic enforcement, Behav. Assess. 
2:31-41. 

Cordner, G. W. (1981). The effects of directed patrol: A natural quasi-experiment in Pon¬ 
tiac, Contemporary Issues in Law Enforcement, Fyfe, J., ed., Sage Publications, 
Beverly Hills, CA. 

Cordner, G. W. (1982). While on routine patrol: What the police do when they’re not 
doing anything, Am. J. Police 1(2): 94-112. 

Gaines, L. K. (1996). Specialized patrol, In Police Operations, Cordner, G. W.. Gaines, 
L., and Kappeler, V. E., eds., Anderson Publishing Company, Cincinnati, OH. 

Kelling, G., Pate, T., Dieckman, D., and Brown, C. (1974). The Kansas City Preventive 
Patrol Experiment: A Summary Report, The Police Foundation, Washington, D.C. 

Larson, R. (1976). What happened to patrol operations in Kansas City? Evaluation 3: 
117-123. 

Mastrofski, S. D., Parks, R. B., Reiss, A. J.. and Worden, R. E. (1998). Policing Neighbor¬ 
hoods: A Report from Indianapolis, National Institute of Justice, Washington, D.C. 

Memphis Police Department (1998). The Impact of Traffic Enforcement on Crashes and 
Criminal Activities, Final Report, National Highway Traffic Safety Administration, 
Washington. D.C. 

Sampson. R. J., and Cohen, J. (1988). Deterrent effects of the police on crime: A replica¬ 
tion and theoretical extension, Law Soc. Rev. 22(1): 163-189. 

Sherman, L. W. (1986). Policing communities: What works?, in Communities and Crime, 
Riess, A. J., and Tonry, M., eds., vol. 8, Crime and Justice: A Review of Research, 
University of Chicago Press, Chicago. 

Sjoquist, D. L. (1973). Property crime and economic behavior: Some empirical results. 
Am. Economist 63: 439. 

Skogan, W., and Maxfield, M. (1981). Coping with crime: Individual and neighborhood 
reactions. Sage Publications, Beverly Hills, CA. 

Stuster, J. W. (1995). Experimental Evaluation of Municipal Speed Enforcement Pro¬ 
grams, Final Report, National Highway Traffic Safety Administration, Washington, 
DC. 

Stuster, J. W. (1997). The Peoria Experience: Traffic Enforcement and Crime: It Pays 
in Peoria, National Highway Traffic Safety Administration, U.S. Department of 
Transportation, Washington, D.C. 

Tien, J. M„ Simon, J. W., and Larson, R. (1978). An Alternative Approach to Police 



146 


Donahue and Josi 


Patrol: The Wilmington Split-Force Experiment, Law Enforcement Assistance Ad¬ 
ministration, Washington, D.C. 

Tittle, C. R., and Rowe, A. R. (1974). Certainty of arrest and crime rate: A further test 
of the deterrence hypothesis, Soc. Forces 52: 455. 

Warren, J. W., Forst, M. L., and Estrella, M. M. (1979). Directed patrol: An experiment 
that worked, Police Chief (July): 48, 49, 78. 

Weiss, A., and Freels, S. (1996). The effects of aggressive policing: The Dayton traffic 
enforcement experiment, Am. J. Police 15(3): 45-64. 

Weston, Paul B. (1968). The Police Traffic Control Function. Charles C. Thomas, Pub¬ 
lisher, Chicago, IL. 

Whitaker, G. P. (1982). What is police work? Police Studies 4(1): 13-52. 

Wilson, J. Q. (1973). Varieties of Police Behavior, Atheneum, New York. 

Wilson, J. Q., and Boland, B. (1981). The effects of the police on crime: A response to 
Jacob and Rich, Law Soc. Rev. 16: 163-169. 

Wilson, J. Q., and Boland, B. (1976). Crime, in The Urban Predicament, Gorham, W., 
and Glaxer, N., eds., The Urban Institute, Washington, D.C. 

Wilson, J. Q., and Kelling, G. (1982). Making neighborhoods safe, Atlantic Monthly 29: 
29-39. 

Wilson, O. W. (1963). Police Administration, 2nd ed., McGraw-Hill, New York. 



8 

Use of Force by Law 
Enforcement Officers 

Greg Meyer 

Police Tactics Consultant, Downey, California 


I. UNDERSTANDING THE NATURE OF THE CHALLENGE 
A. The Power to Use Force 

Law enforcement officers are unique in society because they are permitted by 
law to use physical force to compel others to do their bidding. Officers intervene 
in a variety of urgent, unpredictable situations, and their mission is to keep the 
peace or to restore it (Silberman, 1978). This awesome power must be wielded 
sparingly in a democratic society. The public rightly holds public administrators, 
including police officials, responsive to public preferences and demands (Cooper, 
1982). When officers use force they must do so to control a situation, not to 
punish an offender. However, violent civil unrest occasionally occurs when the 
public perceives that police power has been abused. 

Political officials, police leaders, and officers on the beat and in custody 
facilities must support and apply policy, training, equipment, tactics, and review 
processes that ensure that force is used appropriately. 

Use of force by police naturally upsets onlookers across the street as well 
as viewers of the 6 o’clock news. Conditioned by fictional media depictions of 
sanitized violence on the one hand and fantastic “megaviolence” on the other, 
most people have no frame of reference other than personal emotions to evaluate 
an incident. The average viewer has little or no experience with real violence 
and the chaos that typically surrounds it. There is an abundance of surveys about 
people’s perceptions and attitudes about police brutality, but there are few data 
on people’s experience with or exposure to it (Geller, 1995). Real-life incidents, 
combined with inaccurate media stereotypes, result in people having unrealistic 


147 



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Meyer 


expectations of police officers: cops are too soft; cops are too tough; cops are 
superheroes (Bailey, 1995). 

People tend not to understand even legitimate use-of-force incident dynam¬ 
ics; people are repulsed when they see force applied to a fellow human being. 
Force is used in relatively small percentages of police confrontations, and people 
should not be surprised or offended that police must occasionally use force (Skol- 
nick, 1993). In a perfect society force would be unnecessary and reason would 
prevail. But humans are not perfect, so force must sometimes be used (Koon, 
1993). 

While officer-involved shootings receive the most attention from the public 
and from officers during their training, more than 99% of police use-of-force 
incidents are nondeadly confrontations, although any confrontation that is not 
effectively controlled may degenerate into a deadly one. 

There is significant impetus for police agencies to look beyond the tradi¬ 
tional gun, nightstick, and handcuffs to control violent suspects. Certainly many 
confrontations are immediate and life-threatening, thus deadly force is the appro¬ 
priate response. But many confrontations begin as “stand-offs” with unarmed 
suspects, or suspects who are armed with less than a firearm, where there is time 
to for officers to plan their tactics and distance between the officers and the sus¬ 
pect. Time and distance are the two critical dynamics that affect police choices 
of tools and tactics to use during a confrontation with a suspect who is resistant 
to police commands to submit to lawful arrest. 

The proper combination of tactics and technology can help solve problems 
and reduce the potential for death and injury among officers and suspects (Ijames, 
1998). Pepper spray, Tasers, a variety of stun guns, bean-bag guns, capture nets, 
intense light and sound emission devices, and a variety of other “nonlethal weap¬ 
ons” are available or are in development. 

The fictional Phaser from the popular television series, “Star Trek,” en¬ 
dures as the image of the ideal nonlethal weapon: hand-held, immediately inca¬ 
pacitating to the intended target only, and noninjurious. Although the “Phaser” 
remains fiction, the aggressive use of available nonlethal weapons or other rela¬ 
tively low levels of force to control resisting suspects early in deteriorating con¬ 
frontations predictably results in fewer and less severe injuries to suspects and 
officers. The tactical alternative of prolonging confrontations often leads to more 
injurious (even deadly) degrees of force. Additional benefits of employing nonle¬ 
thal force alternatives include reduced liability, reduced personnel complaints, 
reduced officer-disability time, reduced pensions, and an improved public image 
for law enforcement (Meyer, 1991). 

B. Failures to Meet the Challenge 

The legitimacy of police power is questioned in the wake of a high-visibility 
police use-of-force incident if the public perceives that law enforcement actions 



Use of Force 


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were improper. Most people understand when officers are forced to shoot some¬ 
one who shoots at them, but disparate viewpoints surround other use-of-force 
situations that attract public attention. 

The 1991 Rodney King incident in Los Angeles was perhaps the most 
prominent modern example of a controversial nondeadly encounter. In the middle 
of the night of March 3, 1991, King, a paroled robber, drove a vehicle at speeds 
over 100 miles per hour on a Southern California freeway. He was pursued by 
California Highway Patrol officers who requested Los Angeles Police Depart¬ 
ment assistance when King exited the freeway and continued driving recklessly 
on surface streets. Once stopped. King’s two passengers complied with police 
orders to get out of the car and submit to arrest. King eventually got out of the 
car and performed a bizarre “dance.” He was sweating, laughing, and talking 
irrationally, and many officers on the scene believed he was on drugs. The ser¬ 
geant on the scene ordered four officers to approach and handcuff King, but King 
threw them off. The sergeant used a Taser electronic stun device on King, who 
fell to the ground. At that moment, a bystander across the street began videotaping 
the event. King rose to his feet and charged an officer who delivered a baton 
blow to King’s upper body simultaneously with the sergeant’s use of the Taser 
device again. King fell to the ground and sustained an ugly facial wound. King 
repeatedly attempted to regain his footing as two officers kicked and used police 
batons on him for well over a minute as the video camera recorded the action. 

The videotape was broadcast on a local news program and then was re¬ 
broadcast worldwide. Because Rodney King and his companions were black and 
most of the officers on the scene were white, the brutality argument was immedi¬ 
ately framed in racial terms. Many people falsely believed that King had been 
beaten while he was handcuffed and that he was nearly killed by the police. In 
reality, he sustained numerous bruises and contusions along with a fractured ankle 
and fractured cheek bone. Ultimately, three officers and their sergeant faced crim¬ 
inal charges. The chief of police buckled under relentless public pressure and 
announced his retirement. In court, the accused officers argued that the force 
options they used were legitimate, based on what they had been taught for years. 
They were acquitted in a California state court, and the most extensive riots in 
modem United States history occurred. 

In Los Angeles, 56 people died during the violence. At the behest of the 
President of the United States, federal criminal charges for violation of King’s 
civil rights were brought against the four officers; two were convicted and sent 
to prison. Another federal civil jury later awarded Rodney King $3.8 million in 
general and compensatory damages, but no punitive damages, which the accused 
officers themselves would have had to pay, were awarded. 

The Rodney King incident was a complex event open to many interpreta¬ 
tions. Depending upon one’s life experiences and point of view, the King incident 
was an example of uncontrolled brutality, or it was a controlled use of force that 
was the logical (but ugly and inept) outcome of 9 years of indefensible policy and 



150 


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training. Rodney King was an African-American motorist who was gratuitously 
brutalized by rogue, racist cops, or he was a drunken ex-con who led police on 
a high-speed chase, then resisted arrest because, as King himself admitted, he 
did not want to go back to prison. Responsibility for the incident lay with the 
involved officers and the supervisor of this single incident, or it lay with the police 
chief, his political bosses, and their misbegotten policies that resulted during the 
previous decade in thousands of other baton-based use-of-force incidents that did 
not come to public attention. When the accused officers were acquitted at their 
first criminal trial, the 1992 Los Angeles riots were the fault of the jurors who 
failed to convict the officers, or they were the fault of the rioters who were encour¬ 
aged by inflammatory comments from the Mayor of Los Angeles and the Presi¬ 
dent of the United States, or they were the fault of the police who ironically 
hesitated to use deadly force against the initial rioters who engaged in major 
race-based assaults against innocent people, and of police leaders who failed to 
organize a coherent response to suppress the riot (Cannon, 1997). 

The King incident may be viewed from many perspectives: the officers on 
the scene, officers with the same policy and training who were nor on the scene, 
officers who do not have similar policy and training, police management, people 
of different races and backgrounds who apply their own life experiences to the 
situation, politicians, special interest groups, the media, and countless others. 

The emotions, complexity of issues, and tragic aftermath, including the 
riots that surrounded the King incident and the famous videotape that documented 
the incident, combined to make the Rodney King case a defining moment in law 
enforcement history. The incident must be studied in depth so that appropriate 
conclusions can be drawn, learning can occur, and necessary improvements made 
by police personnel the world over. 

In November 1992, nearly 2 years after the Rodney King incident in Los 
Angeles, two Detroit police officers attempted to arrest narcotics suspect Malice 
Green, who died after being repeatedly struck with heavy flashlights (Samaha, 
1994). In a videotaped deposition, Detroit Mayor Coleman Young defended his 
decision to suspend the involved officers immediately, saying he was afraid of 
a “Rodney King-style riot” (Shepardson, 1995). Later, both officers were sent 
to prison. There were no riots. 

There are many examples that support the general belief that violent social 
unrest typically stems from an unpopular police use-of-force incident. The Watts 
riot of 1965 began as a California Highway Patrol arrest of a drunk driver in Los 
Angeles. The Miami riots of the early 1980s were outgrowths of police use-of- 
force incidents when accused officers were not penalized the way some members 
of the public thought they should be after an officer clubbed to death a fleeing 
motorcycle rider in one instance, and an officer shot a fleeing motorcyclist in 
another. 

As a result of police use-of-force incidents, there have been riots of varying 



Use of Force 


151 


scale from Atlanta to Dayton, Detroit to Seattle, Tampa to Omaha (Geller, 1992). 
As law enforcement professionals make arrests that offend public sensibilities, 
there will be future similar consequences. Therefore, police leaders must promote 
policies and practices that minimize the risk of adverse incidents. 

C. Custody Deaths: Is Law Enforcement Culpable? 

The question of law enforcement culpability for sudden “in-custody” deaths is 
a developing area of great concern to and study by police practitioners and those 
who insure or defend them. These deaths occur quickly and quietly, typically in 
the back seat of a police car during transportation shortly after an arrest involving 
a violent altercation. In truth, this problem reaches beyond law enforcement. Sud¬ 
den in-custody deaths occur in jails and prisons, as well as psychiatric lock-up 
facilities where violent people are occasionally restrained. 

For more than a decade, many doctors and police personnel believed that 
certain methods of restraining and transporting violent people would occasionally 
result in suspects’ demise, particularly due to neck-restraint holds and a phenome¬ 
non known as “positional asphyxia.” In particular, the “maximal restraint” or 
“hog-tie” technique, in which a person’s ankles are bound together then bent 
toward and attached to the handcuffs behind a person’s back, has been the subject 
of intense debate. As a result of these concerns, many agencies changed their 
policies to prohibit the use of such techniques (Meyer, 1994). However, Dr. 
Donald Reay of Seattle, the primary medical proponent of the dangers of the 
positional asphyxia phenomena, changed his long-standing opinion about the 
hog-tie technique when confronted in court with recent medical research at 
the University of California, San Diego Medical Center that showed different 
results from his own earlier study (Price v. County of San Diego, 1998). 

Many medical and police personnel theorize that sudden in-custody death 
syndrome occurs as a result of “excited delirium” (also known as “acute exhaus¬ 
tive mania”) brought on by schizophrenia or acute drug intoxication, particularly 
cocaine, phencyclidene (PCP), or methamphetamine. Excited delirium brings 
about hyperactivity, profuse sweating, incoherence, and extreme violence along 
with a massive release of adrenaline that causes the heart to beat faster. In some 
cases, these factors combine to trigger a fatal heart attack (Wetli, 1997). The 
police tend to be blamed for these deaths even if the officers did nothing wrong. 
To the extent that the effects of schizophrenia and drug abuse are uncontrollable, 
it may be that many of these deaths cannot be prevented. However, it is prudent 
that officers be trained to obtain immediate medical attention for people who 
exhibit excited-delirium symptoms. Medical examiners need to learn more about 
these types of deaths and why relatively few people who experience excited delir¬ 
ium die in custody, while the overwhelming majority of such people do not (La- 
posata, 1997). 



152 


Meyer 


Causes of death in these cases continue to be debated by doctors, lawyers, 
and law enforcement personnel. Further medical research is needed as law en¬ 
forcement, jails and prisons, hospitals, and psychiatric facilities attempt to cope 
with the challenge to prevent sudden in-custody deaths. 

II. PROMOTING EFFECTIVE USE-OF-FORCE POLICY 

A. Policy Formulation 

Progressive law enforcement officials provide policy, training, equipment, tactics, 
and review processes designed to support legitimate use of force while reducing 
the number and severity of injuries to officers and suspects. Policy must provide 
officers with conceptual guidelines, grounded in the values of society and protec¬ 
tions of our Constitution, to provide a frame of reference for decisionmaking. 
Police agencies typically document use-of-force policy in their department man¬ 
ual of operations. Policy must also take into account decisions about training, 
equipment, tactics, and review processes (Meyer, 1994). 

Therefore, policymaking should be approached scientifically. Policymakers 
should consider what changes might be expected as a result of policy, whether 
anticipated changes actually occurred, what outside variables might explain the 
changes, and what unintended consequences occurred after a policy change 
(Geller, 1992). In the case of use of force, policy should be grounded in empirical 
research that demonstrates the effectiveness of and injuries caused by various 
weapons and tactics (Meyer, 1994). 

B. Legal Issues 

Police use of force must be reasonable for the circumstances when it is used. 
This has been the law of the land since 1989 when the United States Supreme 
Court held that police use of force is a seizure of the person subject to the protec¬ 
tions of the Fourth Amendment to the Constitution. The Court further held that 
the standard for evaluating police conduct in a use-of-force incident is whether 
the officers’ actions were “objectively reasonable.” In his opinion for the land¬ 
mark case Graham v. Connor, Chief Justice William Rehnquist wrote that this 
“calculus of reasonableness” must recognize that police must make split-second 
decisions in situations that are “tense, uncertain, and rapidly evolving” (Graham 
v. Connor, 1989). Administrators routinely ought to incorporate into policy the 
advice of agency attorneys. 

C. Policy Resources 

The International Association of Chiefs of Police (IACP) (www.policeforce.org 
or 800-843-4227) and Americans for Effective Law Enforcement (AELE) 



Use of Force 


153 


(www.aele.org or 800-763-2802) are two prominent support resources for police 
policy development. 


III. CONDUCTING EFFECTIVE USE-OF-FORCE 
TACTICS TRAINING 

A. The Value of Values 

Respect for human life and a commitment to doing the job in a humane fashion 
are values to be ingrained in police officers. Many agencies have specific training 
programs to sensitize officers to the values and standards they must apply while 
protecting society (Geller, 1992). 

The values and standards of agencies and individual officers are frequently 
called into question via the lawsuit process because juries in criminal and civil 
cases evaluate officers’ credibility. The resulting verdicts reflect not only the 
jury’s assessment of whether the officer did the right thing, but also whether 
the jury believed the officer’s version of events. Officers who are cognizant of 
the values of society and the police profession are more likely to operate from 
a base of integrity, good faith, and reasonableness than those who are not. 


B. Practical Aspects of Training 

Unfortunately, much law enforcement “training” is merely classroom presenta¬ 
tion, or it is given in the form of a handout or a videotape. Even training that is 
intended to be practical application tends to be static instead of dynamic. For 
example, standing on the line on the pistol range and shooting at the target, reload¬ 
ing, then shooting more, is mainly static training. 

Dynamic trainers put the participants into fast-breaking situations, featuring 
fire-and-movement and cover-and-concealment concepts that force participants 
to act out shoot/don’t-shoot simulation scenarios and experience emergency deci¬ 
sionmaking and psychological pressures likely to be encountered on the street. 
The advent of laser and paint-ball shooting technology facilitates dynamic train¬ 
ing that simulates realistic deadly force encounters. Apart from firearms training, 
dynamic body-contact training requires participants to resist, grapple, and fight 
each other in a manner that attempts to minimize injuries to provide experience 
and build individual confidence in more realistic ways than static training allows. 

The results of an agency providing dynamic training can be dramatic. One 
major East Coast police agency that switched from static to dynamic firearms 
training experienced a 45% reduction in armed confrontations, a 56% decrease 
in officers wounded or killed, and a 51% decrease in offenders wounded or killed 
(Remsberg, 1986). 



154 


Meyer 


Classroom presentation of policy, use-of-force continuum issues, and 
“what if?” scenarios are appropriate. But what is learned intellectually in the 
classroom ought to be reinforced through practical, dynamic training and periodic 
retraining. A recent study by the United States Department of Justice of felonious 
assaults against officers stated this need clearly: 

It is the obligation of law enforcement agencies to keep their officers apprised 
of updates in the latest law enforcement methods and practices. Staying 
abreast of new literature, studies, procedures, concepts, court decisions, and 
equipment is central to ensuring that training programs are current and rele¬ 
vant to today’s law enforcement problems. Adequate training not only bene¬ 
fits the department and its officers, but the communities they serve as well. 
Well-educated officers can better respond to the needs and demands of the 
agency’s constituency. (Davis et al., 1997) 


C. Training Resources 

The American Society of Law Enforcement Trainers (ASLET) 
(. 102414.2150@compuserve.com or 302-645-4334) is a prominent organization 
of police tactics trainers. The International Association of Chiefs of Police (IACP) 
(www.policeforce.org or 800-843-4227) publishes an annual series of well- 
researched “Training Keys” on a wide variety of law enforcement issues, 
including tactical response options. The Federal Bureau of Investigation 
(www.ch.search.org/leb or 202-324-3000) also publishes excellent training mate¬ 
rial in its monthly magazine FBI Law Enforcement Bulletin. 


IV. OBTAINING APPROPRIATE 
USE-OF-FORCE EQUIPMENT 

A. Traditional Weapons 

A major policy issue police forces face is the selection of types of firearms to 
be carried by agency personnel. Whether to equip officers with semiautomatic 
handguns or revolvers as their primary service weapons continues to be a complex 
debate driven by the thesis that police need more firepower to counteract that 
posed by today’s heavily armed criminals. In addition, whether to equip police 
personnel with shotguns, urban police rifles, or even fully automatic military 
weapons requires sensitive policy decisions by today’s police administrators. 
There are operational as well as public relations aspects to such equipment deci¬ 
sions (Geller, 1992). . 



Use of Force 


155 


B. Nonlethal Weapons 

Putting effective, less injurious tools into the hands of the police ought to be a 
national priority (Meyer, 1994). Three decades ago the President’s Commission 
on Law Enforcement and Administration of Justice asserted that nonlethal weap¬ 
ons must provide almost immediate incapacitation of the offender with little risk 
of injury (Katzenbach, 1968). 

A plethora of nonlethal weapons now exists, and many others are in devel¬ 
opment as law enforcement agencies seeks to reduce the risks of injury and death 
associated with control of violent suspects. A variety of police batons (straight, 
PR-24, expandable/collapsible), chemical sprays (pepper spray, CN, CS), elec¬ 
tronic weapons (Taser and various close-contact stun devices), capture nets, ex¬ 
tended-reach grabbing devices, and various projectile launchers (bean bags, shot 
bags, “rubber bullets”) are available and used by American law enforcement 
agencies (Geller, 1992). 

Other innovative devices are in development, including various foams, 
sound projectors, and kinetic energy and light laser devices (U.S. Department of 
Justice, 1996). Pepper spray (generic for Oleoresin capsicum) has proven to be 
a significant injury reducer. The city of Baltimore experienced a 53% decrease in 
use-of-force related complaints during its pepper spray test period (IACP, 1995). 

C. Equipment Resources 

Resources for equipment selection decisions are plentiful. One of the more promi¬ 
nent resources is Law and Order magazine’s (847-588-3100) annual Buyer’s 
Guide Issue. 


V. IMPROVING USE-OF-FORCE REVIEW PROCESSES 

A. Incident Reporting 

It is essential that full details of a police use-of-force incident be investigated by 
a supervisor and documented. This documentation is needed not only for criminal 
and civil litigation (Levine, 1997) but also to determine patterns of conduct that 
should lead to individual and agency improvement in the use-of-force arena. 

B. Continuous Improvement 

The “administrative climate” in which use-of-force incidents are reviewed has 
a dramatic effect in field practices (Geller, 1992). The value of incident review 
processes depends upon the ability of agencies to promote ethical behavior 



156 


Meyer 


through effective co m munication of standards, institutional oversight to ensure 
that employees meet these standards, and a willingness to learn from mistakes 
(Gaffigan et al., 1997). 


REFERENCES 

Bailey, W. G. (ed.) (1995). The Encyclopedia of Police Science, 2" d ed., Garland Publish¬ 
ing Co., New York. p. 760. 

Cannon, L. (1997). How Rodney King and the riots changed Los Angeles and the LAPD, 
Official Negligence, Random House, New York, p. 450. 

Cooper, T. (1982). An approach to ethics for the administrative role, The Responsible 
Administrator, Associated Faculty Press, Inc., Port Washington, NY, p. 112. 

Davis, E. F., Miller, C. E., and Pinizzotto. A. J., eds. (1997). In the Line of Fire, U.S. 
Department of Justice, Washington, D.C., p. 34. 

Gaffigan, S. J., and McDonald, P. P. (1997). Public service with honor, Police Integrity, 
U.S. Department of Justice, Washington, D.C., p. 25. 

Geller, W. A., Scott, M. S.. eds. (1992). Deadly Force: What We Know, Police Executive 
Research Forum, Washington, D.C. 

Geller, W. A., Toch, H., eds. (1995). And Justice for All, Police Executive Research Fo¬ 
rum, Washington, D.C., p. 119. 

Graham v. Connor, et al. (1989) 109 S.Ct. 1865. 

Ijames, S. (1998). Tactics, training and technology for unconventional encounters. Police 
Chief, 65: 3, 31. 

International Association of Chiefs of Police (1995). Pepper spray evaluation project: Re¬ 
sults of the introduction of oleoresin capsicum (OC) into the Baltimore County, 
MD, Police Department, U.S. Department of Justice, Washington, D.C., p. viii. 

Katzenback, N, deB., et al (1968). A Report by the President's Commission on Law En¬ 
forcement and Administration of Justice, The Challenge of Crime in a Free Society, 
Avon Books, New York, p. 575. 

Koon, S. C. (1992). Presumed Guilty, Regnery Gateway, Washington D.C., p. 55. 

Laposata, Elizabeth (1997). Sudden in-custody death seminar lecture, Seattle, May 12- 
13, 1997. 

Levine, D., and Tavera, M. (1997). Use of force reporting guidelines, J. Calif. Law Enf. 
31: 1. 

Meyer, G. (1991). Nonlethal Weapons v. Conventional Police Tactics: The Los Angeles 
Police Department Experience, Master’s thesis, self-published, p. 57. 

Meyer, G. (1994). Misguided use of force: Policy makers made billy-club attacks a police 
tactic of first resort, Los Angeles Daily J. 6: July 11. 

Price v. County of San Diego (1998). WL 16007 (S.D. Cal.). 

Remsberg, C. (1986). The Tactical Edge, Calibre Press, Northbrook, IL, p. 3. 

Samaha, J. (1994). Criminal Justice, 3rd ed.. West Publishing Co., St. Paul, MN, p. 273. 

Shepardson, D. (1995). Young defends suspension of 7 cops after Green death, Detroit 
News. October 27, 1995. 



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Silberman, C. E. (1978). Criminal Violence, Criminal Justice, Vintage Books Edition, 
Random House, New York, p. 274. 

Skolnick, J. H., and Fyfe, J. J. (1993). Above the Law, Macmillan. New York, p. 37. 
U.S. Department of Justice (1996). Technology solutions for public safety conference 
report, NCJ 162532, p. 13. 

Wetli, C. (1997). Sudden in-custody death seminar lecture, Seattle, May 12-13, 1997. 



This Page I nbentionally Left Blank 



9 

Civil Disorder and Policing 


Michael K. Hooper 

Penn State University — Harrisburg, Middletown, Pennsylvania 


I. DYNAMICS OF CIVIL DISORDERS 
A. Pattern of Riots 

Civil disorder and the riots that accompany them are tremendously complicated, 
with many different kinds of dynamics occurring simultaneously at different loca¬ 
tions. Any attempt to define a general pattern for disorders must be accompanied 
with a caveat that such a definition cannot be applied “across the board.” With 
due recognition that disorders may differ in significant ways, several researchers, 
most prominently those at the Lemberg Center for the Study of Violence at Bran- 
deis University, have detected a discernible pattern in disorders, progressing 
through four separate phases of activity. 

Phase I consists of a precipitating incident, often the result of a police- 
related altercation or perceived “injustice” involving a citizen of minority status. 
Phase II involves an angry confrontation between vociferous crowds and police, 
yet during this phase an opportunity still exists for constructive communications. 
Phase III, known as the “carnival” phase or “Roman holiday,” is characterized 
by random vandalism and arson committed by youths who effectively assume 
control of the situation from community leaders. Phase IV is considered “war.” 
Here the slightly hysterical atmosphere deteriorates into serious violence (Porter 
and Dunn, 1984). 

The 1968 National Advisory Commission on Civil Disorder identified a 
common riot precursor, dubbed the “accumulated reservoir of grievances,” in 
place prior to a disorder’s precipitating incident. Frequently, the precipitating 
incident was relatively minor, substantially disproportionate to the scale of vio¬ 
lence that ensued. From this reservoir of grievances and frustrations, the riot 


159 



160 


Hooper 


process began in the 20 cities and three university settings studied by the Com¬ 
mission. 

The leading grievance topics in the 20 cities examined by the Commission 
were police practices, unemployment, and the educational system. The com¬ 
plaints involving policing centered on excessive force, nonreceptivity of police 
to complaints against police, and a general lack of respect on the part of the 
police toward the minority community. Employment grievances centered on dis¬ 
crimination in employment opportunities, exacerbated by systematic disparities 
in job preparedness. Grievances regarding the educational system centered on 
the prevalence of de facto segregation, poor quality of instruction and facilities, 
curriculum deficiencies, and inadequate representation of minorities on school 
boards (National Advisory Commission on Civil Disorders, 1968). 

B. Crowds, Mobs, and the Progression to Riots 

To enter into a crowd is to become part of the dynamics of a unique reality. 
Situational collective behavior stands apart from the highly individualized inter¬ 
actions that dominate the “bureaucratic” social order. The outcome of these 
collective interactions varies from the most boringly mundane to collective panics 
and riots (Wright, 1978). 

By definition, a crowd is a group of individuals temporarily identifying 
themselves with common values and experiencing similar emotions. The crowd 
is aware of the law and generally respects its principles. It is unorganized, without 
leadership, and ruled by collective reason. 

Crowds are classified by their mode of behavior. The important types are 
casual, conventional, expressive, and aggressive. The crowd in its simplest form 
is called a “casual” crowd. It has no psychological unity. Chance alone deter¬ 
mines who will be drawn to it. Such a crowd has a common interest for a few 
moments, such as a group that gathers in front of a store window to watch a 
demonstration or to observe a schoolyard altercation. Such a group responds eas¬ 
ily to a request to disperse. 

The “conventional” crowd is one assembled for a specific purpose, such 
as witnessing an athletic contest. The members of this type of crowd have no 
dependence on each other. Such crowds vary from the quiet, passive group to 
those charged with emotion and whose members are capable of turbulent reaction. 
In most disturbances that may develop, the professional, confident control force 
is able to restore order quickly. 

An “expressive” crowd is so named because its members are engaged in 
some form of revelry. This per se is not to be condemned as it provides an oppor¬ 
tunity for the discharge of tension; interrupting the release of energies may divert 
the latent energies into aggressive and destructive channels. Control agents 
closely survey the expressive crowd to detect sudden changes. 



Civil Disorder and Policing 


161 


An “aggressive” crowd is an unorganized throng, willing to be led into 
unlawfulness, but its group members lack organization and unity of purpose. As 
long as the group is controlled, it remains a crowd; if control is lost, it will evolve 
into a mob. This provides the greatest challenge to control agents. 

Mobs are differentiated from crowds in that mobs are not law abiding. 
Mobs possess the following additional characteristics: organization, leadership, 
common motive for action, and emotion-ruled. 

Transformation of a responsive group of individuals into a mob is caused 
by a climactic event such as an organized expression of sympathy or resentment 
that may cause a group to gather. Many of the individuals involved have little 
direct knowledge of the precipitating incident. They quite naturally begin to initi¬ 
ate conversation with strangers, and rumors spread rapidly. Through the milling 
process the crowd members become of one mind. The members of the mob, 
particularly the more active ones, move around from one small group to another, 
resulting in a spiral of stimulation. Thus, through the process of stimulation, a 
high state of collective tension and excitement is built up. 

As tension mounts, individuals become less responsive to stimulation aris¬ 
ing outside the group and respond only to influences within the group itself. This 
process creates a kind of collective hypnosis by which individuals lose self- 
control and respond only to the dictates of the group. 

As group wrath generates, some form of overt behavior, destructive and 
violent, is imperative. The behavior is the collective expression of the wrath of 
the group, comparable to the wrathful action of the individual who slams the 
door or the telephone. 

Apparent weakening in the strength or attitude of the forces of law and 
order (i.e., indecisive or inefficient police action or lack of proper authoritative 
police action) encourages violence. An actual victory (for example, a retreat and 
delayed regrouping by the authorities) in the encounter with either a civil or 
military control force may so whet and gratify the mob’s appetite that its members 
will press forward more determinedly and dangerously. Once action has begun, 
it usually spreads quickly, engulfing even the more intelligent and self-controlled 
mob members. 

Once violent, destructive acts begin to occur, the individual mob member 
feels a loss of personal identity and becomes merely an anonymous member of 
a large group. The psychological effect of this anonymity is to absolve individuals 
of responsibility for the brutal acts committed. 

When mob violence gets into “high gear,’' the objects of directed violence 
become more generalized. The violence originally may have been directed solely 
against members of another race, against management, or against school or police 
authorities. However, the emotionally driven, nonlogical destruction spreads to 
include other persons or property, which represent to the mob, no matter how 
remotely, symbols of the conditions producing the initial frustration. Police sta- 



162 


Hooper 


tions, schools, churches, grocery stores, pawnshops, liquor stores, and all varieties 
of establishments become “fair game” once the violence gets out of control. 
The behavior is governed by mass hysteria, hatred, and impulse (Momboisse, 
1967). 

C. Case Study: The 1992 Civil Disorder in Los Angeles 

Much of the previous information applies to the massive Los Angeles civil disor¬ 
der of 1992. The Los Angeles disorder, precipitated by the acquittal of four Los 
Angeles police officers accused of severely beating Rodney King, was not only 
extraordinarily costly in terms of human loses and suffering but also was the 
costliest civil unrest in United States history in financial terms. The almost $1 
billion in insurance claims made the riots the fifth most costly catastrophe in the 
history of the United States (Los Angeles Times, 1992). 

The Rodney King incident did not occur in a vacuum but within the context 
of the social, economic, and political climate of the city. The reservoir of tensions 
that accumulated in these areas undoubtedly had a profound impact on the pub¬ 
lic’s perception of both the publicized beating incident as well as the acquittal 
of the four accused officers. The police department-commissioned Webster Com¬ 
mission Report, entitled “The City in Crisis,” examined in detail the events 
preceding the riot. It described the City of Los Angeles as a “tinder box ready 
to explode at the strike of a match. This was the environment into which the 
‘match stick’ verdicts of April 29, 1992, were struck” (Webster Commission, 
1992). 

The swiftness and ferocity of the Los Angeles riots stunned the city and 
nation. Within 1 hour of the televised announcement of the acquittal of the police 
officers, looting had begun at the intersection of Florence and Normandie Streets 
in south-central Los Angeles. Within 90 minutes, rioters were attacking motorists 
at the same location. Four hours after the verdict was announced, police headquar¬ 
ters was attacked by protestors who smashed windows and began a rampage of 
property damage throughout the Civic Center. An hour after this, the riot’s first 
fatality occurred near the riot’s flashpoint. Throughout the first evening of the 
mammoth disorder, the mobs of looters and arsonists committed criminal acts 
largely unopposed by a police force that had failed to respond aggressively at 
the outset of the riot. 

A comparatively recent incident that can be presented to demonstrate the 
recurrent nature of events of civil disorder is the Miami riot of 1980, uncannily 
paralleling the Los Angeles riots. The Miami riot erupted as an isolated, spontane¬ 
ous expression of anger that came after 10 years of relative national calm, in 
contrast to the myriad disturbances that occurred during the 1964-1969 period. 

The immediate cause of the riot was the acquittal of four Dade County 
Public Safety Department police officers who were accused of the beating death 



Civil Disorder and Policing 


163 


of African-American insurance agent Arthur McDuffie. The officers allegedly 
stomped and beat McDuffie with night sticks and flashlights after he led them 
on a high speed chase on his motorcycle. When the McDuffie decision was deliv¬ 
ered, the police failed to prepare for the possibility of a riot. When the riot broke, 
they were slow to mobilize and reacted initially by pulling back their forces. 
By the time they had fully mobilized, it was too late. By 7:00 p.m. on the day 
of the acquittal, the streets were in full disorder (Porter and Dunn, 1984). 

The parallels of the Miami riot to the 1992 Los Angeles were eerily strong. 
Like the situation in Los Angeles, the escalation of events in Miami in the late 
afternoon occurred at such a pace that police mobilization could not keep pace. 
Moreover, the underlying reservoir of grievances and the precipitating incidents 
were virtually identical. 


II. PREVENTION OF DISORDER 
A. Theoretical Foundations 

A rich literature has articulated the value of harmonious relations between the 
police and the community for preventing civil disturbance. While the 1968 Na¬ 
tional Advisory Commission on Civil Disorders is widely cited as bringing to 
the forefront the role disharmonious police relations have in contributing to civil 
disturbances, the value in the presentation of professional attitudes toward minor¬ 
ity groups was widely recognized before the research efforts of the Kemer Com¬ 
mission were undertaken and published. 

During 1962, J.B. Curry and Glen King of the Dallas Police Department, 
in concert with George Eastman of Michigan State University, wrote a textbook 
addressing the theme of race tensions and the police. In it Curry and King recog¬ 
nized the central role of the police in protecting and securing civil liberties and 
in mobilizing constructive community elements to deal with tension. They advo¬ 
cated that police officers establish close relationships with adolescents to the 
extent of involvement in schools’ extracurricular activities. 

Thomas Callahan and Richard Knoblauch acknowledged the difficulty in¬ 
herent in evaluating any preventive activity in collective violence in their exten¬ 
sive research into prevention and control of collective violence under the auspices 
of the Law Enforcement Assistance Administration in 1973. 

David Waddington, Karen Jones, and Charles Critcher examined conditions 
at “flashpoints” for numerous public disorders occurring in England between 
1983 and 1985. They noted that in each instance police-community relations 
had undergone a significant deterioration in the period immediately prior to the 
riots. 

The precipitating incidents leading to the eruption of disorder were reput¬ 
edly only routine proactive policing events, for example, a stop and search of a 



164 


Hooper 


motorist in Brixton and a traffic offense and subsequent search of a house 
for stolen property in Tottenham. The researchers were initially puzzled by how 
routine police practices precipitated incidents of disorder. Their further review 
revealed that the practices were routine only within the context of policing ac¬ 
tions in inner cities. Hence, it was the events’ typicality that allowed them to be 
perceived as symbols of police harassment. The precipitating incident occurred 
coincidentally with accumulation of instances of other police conduct widely 
perceived as mistreatment. 

The operative dynamics pitted the right of a section of the public not to 
be harassed by the police against the duty of the police to search for evidence 
of crime. The researchers concluded that as long as these two claims to rights 
cannot be accommodated, routine police operations in the inner city will continue 
to be potential flashpoints (Waddington et al„ 1989). 

Three years earlier, Geoffrey Alpert and Roger Dunham identified the con¬ 
flict between police officers and community members in attaining consensus in 
the matter of policing style as a significant problem. Alpert and Dunham advo¬ 
cated educating police in the expectations of the communities served in order to 
bring policing styles in line with community expectations. They also encouraged 
the community to provide feedback to the police department on its individual 
officers and on general department performance (Alpert and Dunham, 1986). 

B. Community Policing as a Preventive Mechanism 

After the Rodney King beating incident, a national commission, the Christopher 
Commission, investigated the context in which the King incident occurred. In its 
findings, the Christopher Commission emphasized the importance of community 
relations and the value for law enforcement agencies in adopting the community 
policing philosophy. The Commission emphasized the importance of commun¬ 
ity relations and the value for law enforcement agencies that could be found in 
adopting the community policing philosophy. The Commission noted that the 
community policing model emphasizes a working partnership among the police, 
the public, and other government agencies and “treats service to the public and 
prevention of crime as the primary functions of police in society.” Witnesses 
testifying before the Commission stated that community policing improved rela¬ 
tions between police officers and the citizens served by emphasizing problem¬ 
solving activities within a community (Independent Commission on the LAPD, 
1991). 

In the wake of the 1992 civil disorder in Los Angeles, yet another national 
commission studied the context in which the King beating occurred, as well as 
the circumstances of the civil disorder. The Los Angeles Board of Police Com¬ 
missioners appointed William H. Webster, former FBI Director, and Hubert Wil¬ 
liams, President of the Police Foundation, to convene a national commission 



Civil Disorder and Policing 


165 


to identify the improvements necessary to prevent a similar outbreak of civil 
disturbance in the future. A primary recommendation offered by the Webster 
Commission (1992) was that the police department adopt a proactive problem¬ 
solving model of policing in partnership with the communities of the city. 

Echoing the sentiments of these two prestigious commissions, the Interna¬ 
tional Association of Chiefs of Police (IACP, 1992) proclaimed, in a position 
paper entitled “Areas of Concern in Addressing Contemporary Civil Disorders,” 
that there was “no more significant factor in preventing or responding to civil 
disturbances than the quality of the relationship that exists between a police de¬ 
partment and the community it serves.” The IACP viewed community policing 
as a major factor in helping to prevent civil disorder (IACP, 1992). Just prior to 
the Los Angeles riots, the Police Executive Research Forum published a position 
paper entitled “The Best Defense,” citing community policing as a powerful 
strategy for police to employ in reducing the likelihood of collective violence in 
American cities (Bayley, 1992). 

During early 1993 the beleaguered Los Angeles Police Department, under 
the newly appointed Chief of Police Willie Williams, announced its “Partner¬ 
ships for Community Policing Plan.” This plan represented the fruition of efforts 
to initiate formally a philosophy of community policing. One year later the refined 
plan was unveiled at a formal news conference at a location rich in symbolism: 
the intersection of Florence and Normandie Avenues, site of the “flashpoint” 
of the 1992 civil disorder (Newton, 1994). 

In 1994 Robert Trojanowicz and Bonnie Bucqueroux added significantly 
to the body of research knowledge by specifying in their authoritative textbook, 
Community Policing: How to Get Started, 12 ways that community policing 
could reduce the risk of civil unrest. Prominent among these were the following: 
presumption of goodwill, provision of mutual accountability, and detection of 
unrest prior to escalation. 

The preceding survey of the literature has shown that civil disorder is a 
complex process. The phenomenon’s dynamics have been well researched. Future 
emphasis must be on prevention. Prevention of disorder requires a collaborative 
effort among citizens, government, and the police. 


REFERENCES 

Alpert, G. P., and Dunham, R. G. (1996). Community policing, J. Police Sci. Admin. 
14(3): 212-222. 

Anonymous (1992). Ten costliest catastrophic events in U.S. history, Los Angeles Times 
May 21, Section D-l. 

Bayley, D. H. (1992). The best defense, in Fresh Perspectives, Police Executive Research 
Forum, Washington, D.C. 



166 


Hooper 


Callahan, W. T., and Knoblauch, R. L. (1973). Prevention and Control of Collective Vio¬ 
lence, U.S. Government Printing Office, Washington, D.C. 

Curry, J. B., and King, G. D. (1962). Race Tensions and the Police, Charles C. Thomas, 
Springfield, IL. 

Independent Commission on the Los Angeles Police Department (1991). Report of the 
Independent Commission on the Los Angeles Police Department, R. R. Donnelley 
Financial International Printing Services, Los Angeles, CA. 

International Association of Chiefs of Police (1992). Areas of Concern in Addressing 
Contemporary Civil Disorders. International Association of Chiefs of Police, Ar¬ 
lington, VA. 

Momboisse, R. M. (1967). Riots, Revolts, and Insurrections, Charles C. Thomas, Spring- 
field, IL. 

National Advisory Commission on Civil Disorders (1968). Report of the National Advisory 
Commission on Civil Disorders, Bantam Books, New York, NY. 

Newton, J. (1994). A gamble to reform the LAPD. Los Angeles Times April 17, Section 
A-l. 

Porter, B., and Dunn, M. (1984). The Miami Riot of1980, D. C. Heath and Co., Lexington, 
MA. 

Trojanowicz, R., and Bucqueroux, B. (1994). Community Policing: How to Get Started, 
Anderson Publishing Co., Cincinnati, OH. 

Waddington, D., Jones, K., and Critcher, C. (1989). Flashpoints in Public Disorder, 
Routledge, New York, NY. 

Webster Commission (1992). The City in Crisis, Police Foundation, Washington, D.C. 

Wright, S. (1978). Crowds and Riots: A Study in Social Organization, Sage Publications, 
Beverly Hills, CA. 



10 

Criminal Law 


Craig Hemmens 

Boise State University, Boise, Idaho 


I. SOURCES AND PURPOSES OF THE CRIMINAL LAW 

Criminal law provides a code of conduct that all in a society are expected to 
follow. Criminal laws are enforced by the state, and violation of the criminal law 
is treated as an act against the state as well as against an individual victim (Hart, 
1958). This chapter discusses the general principles of criminal law and summa¬ 
rizes the elements of the more common criminal offenses. 


A. Purposes 

Every society has seen fit to establish rules, or codes of conduct, as a means of 
social control. These norms may be informal or formal in nature. Informal rules 
of social control are imposed and administered by family and friends while formal 
rules of social control are imposed and administered by representatives of society 
such as church or state (Dressier, 1995). In contrast, criminal laws are a formal 
means of social control, designed to regulate human behavior and interaction and 
enforced by representatives of the state: police, courts, and corrections agencies. 

Different jurisdictions define criminal acts, defenses, and penalties differ¬ 
ently, yet there are similarities that cross jurisdictional boundaries. Common char¬ 
acteristics of criminal law include a description of prohibited conduct, a list of 
the penalties prescribed for those who violate the law, and the provision of certain 
defenses to liability. Conviction carries the community’s formal condemnation, 
in the form of a fine, community supervision, or incarceration. This final element 
sets the criminal law apart from civil law, which involves a dispute between 
private parties. 


167 



168 


Hemmens 


Although much of the criminal law forbids actions that society agrees are 
improper, such as murder, rape, and robbery, other laws prohibit conduct about 
which there is less consensus. Acts between consenting adults and possession of 
drugs such as marijuana are examples of these so-called mala prohibita offenses. 
Acts seen as crimes by all in society are referred to as mala in se offenses, mean¬ 
ing “evil in itself’’ (Black, 1983). 

B. Sources 

Criminal law is derived from a variety of sources including constitutions, state 
and federal statutes, and the common law. The bulk of the criminal law is located 
in state statutes, variously referred to as penal or criminal codes. 

Much of state criminal codes are derived originally from the common law 
of crimes. The common law, originating in England, is based on the practice of 
using judicial opinions literally to create and define the law (Black, 1983). During 
the middle of the 19th century, states began to codify common law, enacting 
criminal codes that set forth in one location the law of crimes. Some states still 
recognize as crimes acts defined as such under common law but not codified; 
other states do not. A growing source of criminal law is federal criminal law. 
Traditionally law enforcement has been left largely to the states, but, as criminals 
become more sophisticated and their actions have an impact outside of their local 
community. Congress has acted to criminalize additional activities. 

C. Limitations 

A state cannot criminalize any conduct it chooses to. The criminal law has a 
number of legal limitations, many derived from the United States Constitution. 
Criminal laws, either overbroad or vague, may be declared unconstitutional. A 
criminal law is overbroad if it fails to define narrowly the specific behavior to 
be restricted. For instance, banning the sale of obscene materials is permitted, 
but a statute banning the sale of all material related to sexual activity would be 
overbroad. 

A statute is void for vagueness if it fails to define clearly both the act 
prohibited and the appropriate punishment in advance. A statute must give fair 
notice to both law enforcement and citizens as to what conduct is forbidden, so 
as to limit arbitrary enforcement and provide individuals with fair warning of 
what they lawfully may do (Papachristou et al. v. City of Jacksonville, 410 U.S. 
156 (1972)). 

Criminal statutes also must not restrict due process or equal protection. 
Due process refers to the idea that laws must be enforced in a nonarbitrary man¬ 
ner. Equal protection means the state cannot enact or enforce laws aimed at re- 



Criminal Law 


169 


striding the rights of suspect classifications: groups who historically have been 
ill-treated. According to the Supreme Court, these groups include racial minori¬ 
ties and, in some circumstances, one gender or the other ( J.E.B . v. Alabama , 114 
S.Ct. 1419 (1994)). 

The Eighth Amendment bars cruel and unusual punishment. The Supreme 
Court has read this to require punishments be proportionate to the crime commit¬ 
ted. For example, the death penalty is appropriate only in cases in which a killing 
has been committed ( Gregg v. Georgia, 428 U.S. 153 (1976)). However, the 
Eighth Amendment does not require that every jurisdiction punish an offense in 
precisely the same manner. For example, the Court has upheld a state statute 
providing a sentence of life in prison for habitual felons, even when the underly¬ 
ing felonies involve nothing more serious than obtaining a total of less than $230 
by false pretenses in three separate instances, while such a punishment would 
not be permitted in other states ( Rummel v. Estelle , 445 U.S. 263 (1980)). 

Other constitutional limitations on criminal law less frequently raised in¬ 
clude a prohibition on ex post facto laws (those passed after an event occurs), 
and bills of attainder (laws imposing punishment without a trial). 

The Constitution does not specifically mention a right of privacy; nonethe¬ 
less the Supreme Court has interpreted the various portions of the Bill of Rights 
dealing with individual rights as creating a limited right of privacy. Essentially, 
the Court has determined that there is a right of privacy involving intimate family 
relationships in the home. Hence, a state cannot ban the sale of contraceptives to 
a married couple ( Griswold v. Connecticut, 381 U.S. 479 (1965)) nor completely 
prohibit a woman from having an abortion {Roe v. Wade, 410 U.S. 113 (1973)). 
But a state may criminalize intimate conduct outside the realm of traditional 
family relationships, such as consensual homosexual acts between adults {Bowers 
v. Hardwick, 478 U.S. 186 (1986)). Some states provide greater protection of 
privacy rights in their constitutions or by statute; it is permissible under con¬ 
stitutional doctrine for a state to provide more rights than the federal Consti¬ 
tution. 


II. PRINCIPLES OF CRIMINAL LIABILITY 

Criminal law does not punish all conduct that results in harm, nor does it prohibit 
certain acts and thoughts that many consider reprehensible, such as refusing to 
aid a drowning person or hating someone because of their skin color. Criminal 
liability exists, or in legal parlance attaches, in most instances, only when there 
is both a criminal act and intent, which together are the cause of harm to another. 
Criminal liability is established only if each of five elements is established beyond 
a reasonable doubt. Each of these elements is reviewed in the following section. 



170 


Hemmens 


A. Common Elements of Criminal Offenses 

1. Criminal Act 

Without a criminal act, or “actus reus” (Black, 1983), meaning guilty act, no 
criminal liability exists. The law does not punish evil thoughts alone. It is only 
when these thought are acted upon that punishment occurs. Three forms of crimi¬ 
nal act (voluntary bodily movements, an omission in the face of a duty to act, 
and possession) are treated as acts for the purpose of the criminal law, even 
though two of them, omission and possession, are not acts in the normal sense 
of the word. 

Voluntary movements, the first type of guilty act, are those occurring by 
virtue of the actor’s free will without coercion and with awareness of conduct. 
This excludes involuntary bodily movements such as reflexive actions or uncon¬ 
scious activity such as sleepwalking. The state may not punish someone on the 
basis of status, or what the person is. For instance, the Supreme Court has said 
that it is unconstitutional to punish someone simply for being an alcoholic 
(.Robinson v. California, 370 U.S. 660 (1962)), but lawful to punish someone 
for being drunk in a public place, on the grounds that being an alcoholic is a 
status, while being drunk in public is an action (Powell v. Texas, 392 U.S. 514 
(1968)). 

An omission is generally not subject to sanction, even if morally reprehensi¬ 
ble. However, there are two narrow circumstances in which failure to act may 
result in criminal liability. One is a failure to perform a legal duty, such as failing 
to register a handgun when the law requires registration. Another is a failure to 
intervene to prevent a serious harm when there exists a special relationship be¬ 
tween the parties, as in the case of parents and children. 

Possession, the third criminal act, may itself constitute a criminal act if a 
person has some knowledge of what he or she possesses. While possession is 
passive, the act of acquiring possession requires action, and retaining possession 
in the face of an awareness that it is unlawful to posses the item is similar to an 
omission. 

2. Criminal Intent 

Criminal liability is not based on action alone. There must also be some sort of 
guilty mind, or “mens rea” (Black, 1983). The rationale for this requirement is 
that society does not wish to punish unavoidable accidents. Modem criminal law 
recognizes several levels of intent with varying levels of punishment associated 
with them. While the language varies by jurisdiction, many states use the lan¬ 
guage of the Model Penal Code, written by the American Law Institute (1962). 

The Model Penal Code sets forth four levels of intent: purposeful, knowing, 
reckless, and negligent. A person acting purposefully intends to produce a certain 



Criminal Law 


171 


result. A person acts knowingly when virtually certain of the result of conduct. 
A person acts recklessly when there is an awareness of the risk involved but 
without the certainty of knowledge that harm will follow. Negligence is the un¬ 
conscious creation of a risk of harm. Negligent actors are those who should have 
been aware that they are creating a substantial and unjustifiable risk of harm 
(Dressier, 1995). 

There is one other form of intent. This is the doctrine of transferred intent, 
applying to situations where a person intended to harm A, but in error harmed 
B. To prevent the defendant from escaping liability by claiming he did not intend 
to hurt B and that the element of intent is missing, courts early on developed the 
concept of transferred intent, whereby the intent to harm a particular individual 
is transferred to the actual person harmed. 

3. Concurrence 

Concurrence is simply the union of the criminal act and criminal intent. The 
criminal intent must set the criminal act in motion, so acts not generated by 
criminal intent do not constitute criminal conduct. Motive and intent are different. 
Intent refers to the mental purpose or desire to commit a certain act, while motive 
refers to the cause or reason why an act is committed. Some degree of intent is 
generally required for criminal liability to exist; there is no requirement that the 
prosecution prove motive, although it is commonly done as a means of explaining 
the act to the jury. 

4. Causation 

Causation is the legal principle that the criminal act is the act that is the cause 
of the harm. There are two types of causation: factual and legal. Factual cause 
refers to the idea that but for the actor’s conduct, the harm would not have oc¬ 
curred. It is a necessary, but not sufficient, element for the imposition of criminal 
liability. There must also exist legal cause. 

Legal cause, also referred to as “proximate cause” (Dressier, 1995), is the 
legal principle defining the criminal as the most significant: the act it seems fair 
to hold the actor accountable for his or her actions. Consequences of an act not 
reasonably foreseeable by the actor are intervening causes, which serve to relieve 
the actor of criminal liability. 

5. Harm 

Harm is simply the result of the act: the injury to another. This harm may be 
physical, as in murder; or mental, as in threatening someone with some form of 
harm. There can be no liability without harm although this harm may be to society 



172 


Hemmens 


in general rather than to a specific individual. The state may even criminalize 
acts that harm only the actor, such as suicide or drug abuse. 

B. Liability Without Fault 

In a few instances, criminal liability may exist without proof of criminal intent. 
These include strict liability and vicarious liability. Strict liability, an important 
tort law concept, is also used in the criminal arena. It imposes liability without 
proof of criminal intent in situations where society deems it fair, such as viola¬ 
tions of drug and alcohol sales laws. The rationale for liability without fault for 
this narrow class of crimes is that the actor has chosen to engage in a business 
or activity posing a high risk to society, and that he or she therefore assumes the 
risk of liability for the foreseeable consequences of his or her actions. 

Vicarious liability refers to the imputation of liability from one person to 
another, usually the person in a superior position. It is similar to the tort law 
concept of “respondeat superior” (Black, 1983). Here liability is based not on 
a person's act but on his or her relationship to the person who committed an 
illegal act. It eliminates the criminal act requirement for the second actor by 
imputing the first actor’s intent to him or her. Thus A may be held criminally 
liable for the conduct of B if A is responsible for B’s conduct or supervises B. 

C. Uncompleted and Anticipatory Crimes 

Criminal liability exists for some acts even in the absence of harm. These uncom¬ 
pleted, or anticipatory offenses include attempt, solicitation and conspiracy. 

1. Attempt 

In the early years of the common law it was not a crime to attempt, but fail to 
complete, a criminal act. As the law developed, however, the doctrine of attempt 
developed as a means of controlling both potentially dangerous persons and activ¬ 
ities. For one to be liable for attempting to commit a crime, there must be proof 
of the specific intent to carry out an act that constitutes a crime. General intent 
is not sufficient, as one cannot attempt to commit an act not intended to be com¬ 
mitted. Since the criminal law does not punish evil thoughts alone, there must 
be some evidence of an overt act in pursuance of the intended crime. Courts 
generally require evidence of “some steps” or “substantial steps” (American 
Law Institute, 1962), which constitutes perpetration of the criminal act. 

A limitation on attempt doctrine is the concept of impossibility. There are 
two forms of impossibility: legal and factual. Legal impossibility refers to those 
situations in which actors have done what they intended to do, but the law does 
not prohibit what they did. It is not a crime to do something an actor thinks is 



Criminal Law 


173 


a crime if it actually is not. For instance, if a person intentionally fails to tell a 
customs inspector at the border that he is bringing a rare coin into the country 
because he thinks, mistakenly, that he is required to declare such items and pay 
tax, this is not a crime even though the person thought he was committing a 
crime. 

Factual impossibility involves those situations in which an actor intends to 
commit a criminal act, but some outside factor prevents its completion. An exam¬ 
ple would be, if A shot B, intending to kill B, but did so without realizing that 
B was already dead. A cannot be charged with murder since it is impossible to kill 
someone who is already dead. While legal impossibility is a defense to liability, in 
the majority of jurisdictions factual impossibility is not a defense to criminal 
liability. 

2. Solicitation 

Solicitation involves the intent to induce another to commit a crime. There must 
be words or some action of inducing, accompanied by the intention to induce. 
Joking about a crime is not enough. The solicited crime need not actually be 
committed for there to be solicitation. 

3. Conspiracy 

A conspiracy is an agreement between two or more people for the purpose of 
committing a crime. As with solicitation, the intended crime need not occur for 
the conspiracy to be committed; in most jurisdictions it is enough if there is an 
agreement for an unlawful purpose. Some jurisdictions additionally require some 
act advancing the conspiracy. A coconspirator may be held liable for the actions 
of others in the conspiracy even if unaware of their offenses. 

D. Parties to Crime 

The doctrine of complicity sets forth situations on which more than one person 
may be held liable for criminal activity. Complicity still requires all the elements 
of criminal liability but allows liability to exist for someone else’s conduct. Com¬ 
plicity applies to accessories both before and after the fact so long as the accessory 
is aware that a crime will, or has, occurred (Kadish, 1985). 


III. DEFENSES TO CRIMINAL LIABILITY 

A defense is a response made by a defendant to the complaint, and that, if success¬ 
ful, allows the defendant to avoid criminal liability. Several defenses to criminal 
liability are recognized: an alibi, by which the defendant asserts that she did not 



174 


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commit the act charged; a claim that the state has failed to meet its burden of 
proof on a particular element of the offense charged; or either justification or 
excuse, both of which are affirmative defenses (Fletcher, 1978; Greenawalt, 
1984). 

In an affirmative defense the defendant has the burden of production and 
persuasion. Generally the burden of persuasion is by a preponderance of the evi¬ 
dence, although in some states a higher burden is imposed for certain defenses 
such as the insanity defense. Affirmative defenses may be perfect, resulting in 
acquittal; imperfect, resulting in a reduction of the charge; or simply serve to 
mitigate the punishment. 


A. Justification Defenses 

A justification defense occurs when the defendant admits that he or she is respon¬ 
sible for the act but claims that under the circumstances the act was not criminal. 
Examples of common justification defense include self-defense, consent, and exe¬ 
cution of public duties. 

1. Self-Defense 

Self-defense may be successfully claimed if the defendant can demonstrate that 
he or she used force to repel an imminent, unprovoked attack that would result 
in his or her serious injury. In such a situation the defendant may only use as 
much force as is necessary to repel the attack. If defendants use more force than 
is necessary, they cannot claim they were acting in self-defense and may be crimi¬ 
nally liable. 

There are a number of limitations and exceptions to the general rules of 
self-defense. These include the retreat doctrine, stating that a person must retreat 
rather than use deadly force if doing so is possible without endangering the vic¬ 
tim’s life. The castle doctrine, on the other hand, states that a person attacked in 
the home does not have to retreat (Dressier, 1995). Some states endorse the retreat 
doctrine; others endorse the castle exception. Self-defense may also apply to de¬ 
fense of others and, in some circumstances, to defense of property. 

2. Consent 

Consent is a defense to some crimes. Most jurisdictions provide that persons may 
consent to suffer what would otherwise be considered a legal harm. The acts a 
person can consent to suffer are quite limited, however, and it must be demon¬ 
strated that the consent was voluntary, knowing, and intelligent. An example of 
consent would be professional athletes who choose to engage in activity in which 
injury similar to that sustained as a result of an assault may occur. 



Criminal Law 


175 


3. Execution of Public Duties 

An agent of the state (a police officer or soldier) is permitted to use reasonable 
force in the lawful execution of duties. This defense allows the use of deadly 
force under the proper circumstances, as well as allowing police to engage in 
activities that are otherwise criminal if they are doing so as part of their law 
enforcement efforts, such as posing as a drug dealer. 

B. Excuse Defenses 

With an excuse defense, the defendant admits what he or she did was wrong but 
argues that under the circumstances he or she is not responsible for the improper 
conduct. Excuse defenses include duress, intoxication, age, and insanity. 

1. Duress 

Duress may be raised as a defense in a limited number of situations. These vary 
by jurisdiction but generally include situations involving the threat of serious, 
imminent harm to one’s self in which the act is less serious than the threatened 
harm. An example of duress is if A is forced to rob a store by B, who holds a 
gun to A’s head and threatens to kill A unless A does as instructed. In this instance 
A committed a serious crime, but did so only to avoid a more serious crime: 
being murdered by B. Duress is allowed as a defense under the rationale that 
those forced to commit a crime in such circumstances do not act voluntarily, so 
there is no actus reus component. Another explanation is that subjugation to an¬ 
other’s will removes the mens rea component (Dressier, 1995). 

2. Intoxication 

There are two forms of intoxication: voluntary and involuntary. Voluntary intoxi¬ 
cation never provides a complete defense but may be used to mitigate the penalty. 
Involuntary intoxication may provide a defense if it can be shown that the actor 
was unaware that he or she was being drugged. In such cases the actor is excused 
because he or she is not responsible for becoming intoxicated; consequently it 
would be unfair to hold him or her liable for the resulting uncontrollable action. 
The Supreme Court has recently held that due process does not require that states 
allow the defense of intoxication, although most states do allow it (Montana v. 
Egelhoff, 64 L.W. 4500 (1996)). 

3. Age 

Youth has historically been treated as a defense to criminal liability on the 
grounds that persons below a certain age lack the requisite mental capability to 
form mens rea. Under common law, there was an uncontrovertible presumption 



176 


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that children under the age of 7 years were incompetent (Black, 1983). Today the 
various jurisdictions define the age of majority at varying ages. Those classified as 
juveniles are dealt with not in the criminal justice system, but in the juvenile 
justice system. The parens patriae doctrine of the juvenile court is slowly giving 
way to an increased desire to treat juveniles similarly to adult offenders; hence 
a number of states have liberalized the offenses for which a juvenile can be 
transferred to adult criminal court (Fritsch and Hemmens, 1996). 

4. Insanity 

Insanity is a legal term that describes mental illness. This excuses criminal liabil¬ 
ity by impairing mens rea. There are several different legal tests for insanity, 
including the right-wrong test (also called the M’Naghten rule), the irresistible 
impulse test, the Durham test, and the substantial capacity test. 

Each of the tests of insanity is slightly different. The M’Naghten standard 
for insanity determines if a defendant either did not know what he or she was 
doing or that it was wrong. The irresistible impulse standard is defined as being 
when a defendant could not control his or her conduct. The Durham standard is 
met when the act was caused by the defendant’s mental illness. The substantial 
capacity standard is defined as when the defendant lacks substantial capacity 
either to control his or her conduct or appreciate the wrongfulness of his or her 
conduct. 

All of these tests have been criticized as either too difficult or too easy for 
the defense to prove insanity (Dressier, 1995). Several states and the federal 
courts have recently limited the use of the insanity defense or altered the burden 
of proof in establishing the defense. Federal courts, for instance, require that the 
defense establish insanity by clear and convincing evidence, rather than the stan¬ 
dard usually applied to affirmative defense, namely a preponderance of the evi¬ 
dence. This is a more difficult burden for the defense, since clear and convincing 
evidence requires more proof than a preponderance of the evidence. 

IV. CRIMES AGAINST THE PERSON 

Crimes are frequently categorized on the basis of the type of act. Using this 
approach, there are crimes against the person, crimes against property, crimes 
against society, and crimes against morality. Each of these categories encom¬ 
passes a wide range of conduct, but crimes against the person are often ranked 
among the most serious offenses. 

A. Homicide and Manslaughter 

Homicide is a broad, all-inclusive term for any killing of another human being. 
Definitional issues include what is a human being, when is someone alive (or 
dead), and what types of homicide are deserving of punishment. 



Criminal Law 


177 


The issues of when life begins and ends are difficult moral and ethical 
questions and pose legal problems as well. Some states criminalize the killing 
of an unborn fetus, while others require the baby be born alive and then die before 
a killing is considered to have occurred. Determining when life ends is made 
more difficult as medical science allows severely injured persons to continue to 
show signs of life. Under common law, death occurs when the heartbeat stops, 
but many states now define death as occurring when there is an irreversible cessa¬ 
tion of brain function. 

The Model Penal Code differentiates between lawful killings, such as those 
committed in self-defense or public duty, and unlawful killings, or criminal homi¬ 
cides. Three forms of criminal homicide are recognized: murder, manslaughter, 
and negligent homicide. 

Under common law, murder was generally defined as the killing of another 
person, with malice aforethought (Black, 1983). Murder is defined today by the 
Model Penal Code as a killing that occurs purposefully, or knowingly, or reck¬ 
lessly under circumstances exhibiting extreme indifference to human life. Since 
these constitute three distinct levels of intent, murder is graded by intent into 
first-degree and second-degree. First-degree murder encompasses killings that 
are deliberate and premeditated. Second-degree murder includes any killings that 
are intentional but neither deliberate or premeditated (American Law Institute, 
1962). 

Manslaughter, a second category of criminal homicides, includes both vol¬ 
untary and involuntary manslaughter. Voluntary manslaughter is an intentional 
killing that occurs either under a mistaken belief that self-defense required the 
use of deadly force or in response to “adequate provocation while in the sudden 
heat of passion” (Dressier, 1982). Adequate provocation under common law in¬ 
cluded situations such as a person catches their spouse in the act of committing 
adultery. Today, adequate provocation is defined more broadly to include any 
killing that occurs in a situation that could cause a reasonable person to react 
violently. Examples include adultery, assault, and trespass. Words alone are gen¬ 
erally not considered sufficient to create adequate provocation. Involuntary man¬ 
slaughter is a criminal homicide, while an unintentional killing results from a 
reckless act. 

Negligent homicide, the third category of criminal homicide, is an uninten¬ 
tional killing that occurs when the defendant should have known he was creating 
a substantial risk of death by his conduct, which deviated from the ordinary level 
of care owed to others (Model Penal Code, 1962). The most common example is 
negligent driving, and in some jurisdictions there is a separate offense, vehicular 
homicide. 

Another type of homicide is felony murder. Under the felony murder 
rule, an individual may be held liable for an unintended killing occurring during 
the commission of a dangerous felony. In most states felony murder is treated 
as second-degree murder. There is no requirement of intent to kill or inflict ser- 



178 


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ious injury. It is enough if the person was engaged in what is considered a danger¬ 
ous felony or a felony in which serious injury is a reasonably foreseeable out¬ 
come. 


B. Assaultive Offenses 

There is a number of crimes against persons aside from murder and manslaughter. 
These offenses, while less serious than killing, are nonetheless treated seriously 
in criminal law because the crimes involve one form of or another harm to a 
person. Among these are assault and battery, kidnapping, and an assortment of 
sexual offenses, including rape, sexual assault, and child sexual abuse. These 
offenses, while different in form, all share the common denominator of direct 
harm to a person, inflicted by the actor. 

1. Assault and Battery 

The common law made a clear distinction between the offense of assault and the 
offense of battery. Assault was either an attempt or a threat to inflict immediate 
harm by a person with the present means of carrying out the attempt or threat. 
No physical contact was necessary for an assault to take place. It was enough if 
the victim reasonably feared for safety or if the defendant attempted to complete 
the assault. A completed assault where there was contact was considered a bat¬ 
tery. 

A battery under common law was defined as unjustified, offensive physical 
contact of some sort. It could involve being hit by a fist, being spat upon, or 
being shot. There had to be an intent, by the person initiating the contact, to 
make contact. 

Today, many jurisdictions have merged the offenses of assault and battery, 
referring to both as assault, and grading what was assault under common law as 
a less serious form of the offense. Cases in which there is serious injury, or the 
attempt to do serious injury, are treated as subject to more severe sanctions. 

2. Kidnapping 

Kidnapping involves the forcible seizing and carrying away, or “asportation” 
(Black, 1983) of another. Under common law kidnapping required the carrying 
away of a person from the home country. Today the element of asportation has 
been severely circumscribed by courts, who have held that transporting someone 
a few yards may be sufficient to constitute carrying away. 

Several states have eliminated the element of asportation altogether, focus¬ 
ing on the intent to confine someone in secret. This definition comes close to the 



Criminal Law 


179 


common law crime of false imprisonment, which involves the forcible detention 
of another. 

3. Sexual Offenses 

Sexual offenses against a person include rape, sexual assault, child sexual abuse, 
and a number of other acts related to sexual conduct, resulting in an assault. 
While sexual offenses are in many ways similar to the common law offenses 
assault and battery, sexual offenses have traditionally been defined separately and 
punished more severely. Sexual violation is seen as a more egregious violation of 
an individual, and the disproportionate number of female victims has played a 
role in the development of rape law. 

Rape, under common law, was defined as carnal knowledge by a man of 
a woman not his wife, forcibly and without her consent. This definition created 
several interesting gaps in the law: only men were capable of rape, only women 
could be raped, men could not rape their wives, the only act that constituted rape 
was vaginal intercourse, and there must be evidence of both force and resistance 
to force (Estrich, 1986). 

Today this definition has been substantially modified. The majority of states 
have formally abolished the so-called marital rape exception, and many states 
have rewritten their rape statutes using gender-neutral language so that the crime 
applies to acts committed by men and women and to acts committed against men 
and children. A number of states have also relaxed the requirement that a woman 
physically resist her attacker, on the grounds that requiring her to do so simply 
puts her at risk of additional harm. 

There has also been an attempt to limit the sort of evidence that can be 
introduced at trial. Rape shield statutes restrict the introduction into evidence of 
a victim’s prior sexual history and in some cases remove consent as an element 
of the crime. The Model Penal Code follows this approach, focusing instead on 
the conduct of the defendant. This aligns the elements of rape law more closely 
with the elements of modem assault law, which do not focus on the conduct of 
the victim. Some states no longer classify the crime as rape but instead use the 
phrase “sexual assault” (Texas Penal Code, 1995). 

Other sexual offenses, currently the subject of much public debate, include 
child sexual assault. Recent highly publicized cases, involving allegations of child 
sexual abuse and the increase in the number of reports of sexual assaults on 
children by both family and strangers, have heightened public awareness and led 
to a toughening of child sexual abuse laws. 

While the elements of these laws follow closely the elements of rape law, 
the punishment accorded these offenses is often even more severe. Although 
the Supreme Court in 1976 declared that the death penalty was a punishment 
disproportionate to the offense of rape of an adult woman, several states have 



180 


Hemmens 


recently enacted statutes providing for the death penalty in cases involving the 
rape of a young child. Whether these laws will withstand constitutional scrutiny 
remains to be seen. 


V. CRIMES AGAINST PROPERTY 

Crimes against property encompass a broad spectrum of activities. Burglary, tres¬ 
pass, arson, theft in its variety of forms, forgery, and receiving stolen property 
all fit into this category. 

A. Burglary and Trespass 

Burglary is a crime committed against the home. Since the earliest common law, 
the dwelling has been given special protection from entry by agents of the state 
as well as by uninvited guests. 

However, the definition of burglary has changed over time as society has 
developed and conditions have changed. Burglary under early common law could 
take place anywhere that was likely to attract people, including public places. 
Gradually burglary became limited to home invasions, and, by the 17th century, 
burglary was defined as the breaking and entering of the dwelling of another at 
night with the intention of committing a felony inside the dwelling. Burglary was 
restricted to nocturnal home invasions on the theory that these were more likely 
to result in greater harm to the occupants, who were more likely to be home. 

It is important to note that burglary was (and is) not entry alone; there must 
be an unlawful entry accompanied by the present intent to commit another crime 
once inside. Thus, stealing a television from your neighbor’s house is not neces¬ 
sarily burglary unless you had the intent to remove the television as you broke 
into the house. Going into someone’s house, or simply onto property unlawfully, 
is trespass. There is no need to intend to commit any additional acts. Today 
burglary is much more broadly defined in most jurisdictions. It may occur at all 
hours of the day and is not limited to dwellings but may occur in virtually any 
structure. 

B. Arson 

Arson is setting fire to a structure with the intent to bum the structure in whole 
or in part. Under early common law arson applied only to the burning of the 
dwelling of another. The definition of the crime was soon expanded to cover any 
structure, including one’s own home and nonresidential buildings. Most jurisdic¬ 
tions grade arson so that the burning of an occupied structure is first-degree arson, 
and the burning of an unoccupied structure is second-degree arson. Some jurisdic- 



Criminal Law 


181 


tions have expanded arson to cover the burning of personal property, such as 
vehicles, as well as structures, and this is generally treated as third-degree arson. 
There must exist an intent to burn, which excludes negligent acts but includes 
reckless conduct. 


C. Theft Offenses 

Crimes against the person receive the bulk of media and public attention, but the 
reality is that crimes against property are far more common, with most property 
crimes involving the theft of property. Under early common law only the crime 
of larceny existed, but as society developed and criminals devised new ways to 
deprive people of their possessions, the law responded by creating new offenses. 
Because the law of theft developed so haphazardly, theft offenses were confusing 
and hard to differentiate from one another. Today many states have done away 
with the variety of theft offenses and lump together all crimes involving the 
unlawful obtaining of property as larceny. 

1. Larceny 

Larceny, under common law, was the unlawful taking and carrying away of an¬ 
other’s personal property with the intent to deprive the rightful owner of his or 
her possession permanently. This definition encompassed takings by force, later 
known as robbery, and takings without the knowledge of the owner, commonly 
referred to as stealing. 

As society evolved and people began to rely on others to do business, per¬ 
sonal property was placed in the custody of another for a limited purpose. Thus, 
person X might give a bank clerk $100 to deposit in person X’s bank account. 
If the clerk instead kept the money for himself or herself, it was not larceny 
because there was no wrongful taking; person X willingly handed over the money 
to the clerk. Courts soon responded by enlarging the definition of larceny. 

Today larceny is defined broadly and includes takings by stealth, force, 
fraud, and false pretenses. Under common law each of these were separate of¬ 
fenses, but today in many jurisdictions the above are all classified as larceny. 
This trend follows the Model Penal Code approach of consolidating the common 
law theft offenses. 

All the elements of larceny have been significantly broadened over the 
years. The taking element is satisfied when an actor gains brief control over an 
item, either directly or indirectly. The carrying away element is satisfied if the 
item is moved even a slight distance from its original location. The personal 
property element has been expanded to cover both personal and real property. 
Personal property is that one can carry, such as a book; real property is land and 
items permanently attached to the land, such as a building. Finally, there must 



182 


Hemmens 


still be an intent to deprive permanently. A temporary misappropriation of the 
property of another is not larceny but is punishable as a lesser offense, such as 
joyriding. Most jurisdictions now grade larceny, based either on the method of 
taking or the value of the property taken. 

2. Robbery 

Robbery is simply larceny by force. It is the most serious form of larceny since 
it involves an offense against both property and the person who is present when 
the property is taken. Any force beyond what is necessary to carry away the 
property constitutes force for purposes of imposing criminal liability for robbery. 
Robbery may occur through the use of weapons, physical force, or the threat of 
force if the victim reasonably believes the robber has the present ability to use 
force. A taking of property accomplished via the threat of future harm to person, 
property, or reputation is extortion. 

3. Forgery and Uttering 

Forgery and uttering are two separate offenses. Forgery is the making of a false 
legal writing or the alteration of an existing legal document, such as checks, 
stocks, bonds, wills, and deeds. There must be an intent to defraud; if so, the 
offense is complete with the creation of the false legal document. 

Uttering is the passing of a false legal document to another with knowledge 
of its falsity and the intent to defraud. Unknowingly using a counterfeit bill is 
not uttering, nor is the passing of a check drawn on insufficient funds so long 
as the issuer is unaware that no funds are available. 

4. Receiving Stolen Property 

Under early common law one who received stolen property had not committed 
a crime because he or she was not the one who committed the taking of the 
property from the original owner. The crime of receiving stolen property was 
soon developed, however, to deal with the problem of fences, or persons who 
dealt in stolen goods. For liability to exist, a person must be in possession of 
property he or she knows or has reason to believe is stolen, along with an intent 
to deprive permanently the rightful owner. Thus, a person who finds a watch on 
the sidewalk and intends to return it to the owner or turn it over to the authorities 
has neither stolen it nor received stolen property. 


VI. CRIMES AGAINST PUBLIC ORDER AND MORALITY 

Crimes against persons and property have readily identifiable victims. Other acts 
are classified as crimes, but the victim is less readily identifiable. These acts fall 



Criminal Law 


183 


into one of two categories: crimes against public order or crimes against public 
morality. Crimes against public order are those in which the injury is to the peace 
and order of society. These include disorderly conduct, unlawful assembly and 
vagrancy. Crimes against morality, or public morals crimes, are those in which 
the moral health of society is injured. These include consensual sexual acts such 
as adultery, prostitution, and obscenity. 

A. Public Order Offenses 

Those who commit public order offenses generally do not direct their conduct 
at specific individuals. Because of this, public order offenses are frequently chal¬ 
lenged as constitutionally invalid because they place limits on cherished individ¬ 
ual rights such as freedom of assembly and privacy. States must take care to 
craft public order legislation carefully so that it does not impermissibly limit 
constitutionally protected conduct. Statutes that do so are often struck down by 
courts on the grounds of vagueness or overbreadth. 

The early common law made it a crime to disturb public tranquillity, termed 
breach of the peace. Today many states have codified it as disorderly conduct. 
This is a catchall phrase and has been held to include acts as diverse as public 
drunkenness, vagrancy, playing loud music, and fighting. 

Disorderly conduct in a group setting is generally referred to as unlawful 
assembly. This includes groups assembled in public without the necessary per¬ 
mits, as well as riots. Vagrancy was a crime developed in feudal England to 
control the peasants, and tie them to their lords. Vagrancy laws made it a crime 
to move about the country without proof of employment. Today vagrancy statutes 
are often determined by courts to violate the Constitution because they are over¬ 
broad (Papachristou et al. v. City of Jacksonville, 405 U.S. 156 (1972)). 

B. Public Morals Offenses 

Public morals offenses involve acts committed by consenting adults but which 
society has chosen to prohibit as immoral even if freely engaged in. Examples 
include fornication, adultery, bigamy, and prostitution. Most public morals of¬ 
fenses involve the regulation of sexual activity in some form. While these acts 
all involve consenting adults, arguments have been made that in fact consent is 
not freely given by some, as in the case of prostitution, or that such conduct 
diminishes the moral capacity of society and hence deserves to be criminalized 
as a means of eliminating or at least reducing such activity. 

VII. CONCLUSION 

According to social contract theory, when human beings abandoned their solitary 
existence for the benefits of living among others, they gave up some of their 



184 


Hemmens 


individual rights to the state in return for the benefits gained from living in society 
(Abadinsky, 1998). The criminal law is the formal means society uses to control 
the conduct of individuals. Informal means of social control still exist and are 
often effective, but, when informal means fail, the criminal law exists to deal 
with society’s transgressors. 

Criminal law has developed as society has developed. Definitions of crimes 
have changed, and new offenses have been created in an attempt to maintain a 
rational set of rules by which society can function and individuals within society 
are protected from others. What is legal may vary across the years and by culture, 
but all societies with a written criminal law share many similarities. 

The issues that scholars, judges, and juries continue to struggle involve the 
limits of the criminal sanction. How much can society expect the criminal law 
to accomplish? When is it fair and just to hold someone accountable for conduct, 
and to subject that person to criminal sanctions? Determining not only when 
liability should exist, but also the appropriate level of punishment, is difficult. 
The choices involve a combination of policy considerations, legal doctrine, and 
morality. 


REFERENCES 

Abadinsky, H. (1998). Law and Justice, 4th ed, Nelson-Hall, New York. 

American Law Institute. (1962). Model Penal Code. 

Black. H. C. (1983). Black’s Law Dictionary, 5th ed., West, Minneapolis. MN. 
Dressier, J. (1982). Rethinking heat of passion: A defense in search of a rationale, J. 
Criminal Law Criminol., 73: 421. 

Dressier, J. (1995). Understanding Criminal Law, 2nd ed. Matthew Bender, New York. 
Estrich, S. (1986). Rape, Yale Law J. 95: 1087. 

Fletcher, G. (1976). The metamorphosis of larceny, Harvard Law Rev. 89: 469. 
Fletcher, G. (1978). Rethinking Criminal Law, Little, Brown and Company, Boston. 
Fritsch, E. J., and Hemmens, C. (1996). Juvenile waiver in the United States 1979-1995: 
A comparison and analysis of state waiver statutes. Juvenile Family Court J. 46: 
17. 

Greenawalt, K. (1984). The perplexing border of justification and excuse, Columbia Law 
Rev. 84: 1897. 

Hart, H. M. (1958). The aims of the criminal law. Law Contemp. Problems, 23: 401. 
Radish, S., H. (1985). Complicity, cause and blame: A study in the interpretation of doc¬ 
trine, Calif. Law Rev., 73 : 323. 

Texas Penal Code. (1995). Assaultive offenses (Chapter 22), Gould, Longwood, FL. 



11 

Criminal Procedure 


Craig Hemmens 

Boise State University, Boise, Idaho 


I. WHAT IS CRIMINAL PROCEDURE? 

All democratic societies question the level of authority over the individual citizen 
granted to the state. Social contract theory posits that by choosing to live among 
others individuals give up some of their liberty and permit the state to intervene 
in their lives (Abadinsky, 1998). But how much? And in what manner? These 
questions are particularly relevant when the police, in the investigation of crimi¬ 
nal activity, interfere with the liberty interests of citizens. 


A. Purpose of Criminal Procedure Law 

While the criminal law (see Chapter 10 on Criminal Law) sets forth the appro¬ 
priate code of conduct for all citizens, criminal procedure comprises the rules 
governing the manner in which the state may go about depriving an individual 
of liberty. Criminal procedure includes when and in what manner law enforce¬ 
ment may detain, arrest, or search a person. It also includes when and how police 
may interrogate criminal suspects and conduct identification procedures (LaFave, 
1996). 

Balancing the rights of tire individual and the authority of the police is a 
difficult, but crucial, process. Packer (1964) asserts that there are two competing 
models of the criminal justice system: due process and crime control. The due 
process model is concerned primarily with protection of individual privacy. It 
emphasizes the importance of the formal legal process as a means of ensuring that 
mistakes are kept to a minimum and operates on the presumption of innocence. 
However, the crime control model is primarily concerned with the reduction of 


185 



186 


Hemmens 


crime and the protection of public order. It emphasizes the use of discretion and 
police power as a means of quickly and efficiently investigating and screening 
cases, operating on a presumption of guilt. 

Criminal procedure law attempts to balance the differing goals of these two 
models, but it is a zero-sum game. Granting the police greater power to investi¬ 
gate crime means reducing individual liberty and privacy. Conversely, increasing 
individual rights may result in suspects who are factually guilty going free be¬ 
cause the state is unable to prove legal guilt beyond a reasonable doubt, which 
is the burden of proof in criminal cases. 

B. Sources of Criminal Procedure Law 

The United States Constitution, including the Bill of Rights and the Fourteenth 
Amendment, is the legal foundation for most criminal procedure decisions. The 
Bill of Rights sets forth 23 individual rights, and the Fourteenth Amendment’s 
guarantees of due process and equal protection have been interpreted by the 
United States Supreme Court to incorporate much of the Bill of Rights against 
state action. 

Originally, the Bill of Rights was conceived as applying only against the 
federal government. During the 20th century the Supreme Court has interpre¬ 
ted the due process clause of the Fourteenth Amendment as incorporating many 
of the individual rights contained in the Bill of Rights. Incorporation means that 
the individual right (such as the Fourth Amendment’s right to be free from unrea¬ 
sonable searches and seizures) is included in the Fourteenth Amendment’s guar¬ 
antee of due process or equal protection. Rights incorporated in the Fourteenth 
Amendment are those the Court has deemed “fundamental” (Tribe, 1988). These 
rights are applied against the states and include most of the criminal procedure- 
related provision of the Fourth, Fifth, Sixth, and Eighth Amendments. 

Other sources for criminal procedure law are state constitutions and federal 
and state statutes. States are free to provide more individual rights than the federal 
Constitution but cannot abridge any federal constitutional rights. In the past, 
states were seen as somewhat less protective of the rights of criminal suspects. 
However, in recent years a number of state courts have interpreted their state 
constitutions as providing greater limitations on what the police may do (Abra- 
hamson, 1985). Consequently, criminal defendants may be accorded more rights 
and protections by state courts than the United States Supreme Court. 

Since most criminal procedure law is derived from the provisions of the 
Bill of Rights, in particular the Fourth, Fifth, and Sixth Amendments, courts are 
frequently called upon to interpret the meaning of these amendments and to apply 
them to current fact situations. For example, the Sixth Amendment prohibits com¬ 
pelling a person to testify against him- or herself, but does requiring an individual 
to take a breathalyzer test or give a blood sample constitute testimony when the 



Criminal Procedure 


187 


results may be used to prosecute him or her at trial? The Fourth Amendment 
prohibits the unreasonable seizure and search of persons, places and effects, but 
what is an effect? And what is unreasonable? Courts must answer these questions 
to determine when police officers have exceeded the scope of their authority, 
either intentionally or unintentionally. 

The United States Supreme Court has the final word on the constitutionality 
of any state action challenged as a violation of a constitutional right. Conse¬ 
quently, much of criminal procedure law is based on Supreme Court decisions. 
Since courts decide only the case before them and do not issue policy directives, 
criminal procedure law has developed fitfully, on a case-by-case basis. Much of 
criminal procedure law has been written in the past 50 years since the Supreme 
Court began to apply the provisions of the Bill of Rights to the states, which 
conduct the bulk of criminal investigation and prosecution. 


II. THE FOURTH AMENDMENT 

Search and seizure law is governed in large part by the Fourth Amendment, which 
states that citizens have a right to be free from unreasonable searches and seizure, 
and that warrants shall be issued only upon a showing of probable cause. These 
two portions of the amendment are sometimes referred to as the “reasonableness 
clause” and the “warrant clause” (LaFave, 1996). 

A. Warrant and Reasonableness Clauses 

The warrant clause was included originally to prevent the issuance of so-called 
“general warrants,” commonly employed by the British prior to the American 
Revolution (Cuddihy, 1990). It states that all warrants must be based on probable 
cause and describe the place to be searched or person to be seized with particular¬ 
ity. Particularity means that the warrant must clearly state who or what it is to 
be searched or seized so as to limit the discretion of the police officer. 

The Supreme Court has interpreted the reasonableness clause to allow 
searches without warrants, provided both probable cause and an exigent circum¬ 
stance exist, which justifies failure to obtain a warrant. These exigent circum¬ 
stances, or exceptions to the warrant requirement, have been spelled out by the 
Court on a case-by-case basis and apply to a variety of situations (Amar, 1994). 

B. Probable Cause 

Probable cause exists when “the facts and circumstances within the officers’ 
knowledge and of which they had reasonably trustworthy information are suffi¬ 
cient in themselves to warrant a man of reasonable caution in the belief that an 



188 


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offense has been committed” ( Brinegarv. United States, 338 U.S. 160 (1949)). 
The Court has stated that probable cause is a ‘ ‘fluid concept’ ’ that does not require 
absolute certainty or even a great likelihood of criminal activity; it is enough if 
there is a “fair probability” of criminal activity ( Illinois v. Gates, 462 U.S. 213 
(1983)). The burden of proof in a criminal trial is proof beyond a reasonable 
doubt, which is often equated with near-certainty; the burden of proof in a civil 
trial is a preponderance of the evidence, which is simply more likely than not. 
W h ile it is difficult to quantify accurately or precisely define the levels of proof 
(Hemmens et al., 1997), probable cause is similar to the preponderance of the 
evidence standard in civil trials and significantly less than what is necessary to 
obtain a criminal conviction. 


III. ARREST 

The Fourth Amendment prohibits unreasonable seizures. Seizure is a broader 
term than arrest, which does not encompass all detentions. A seizure involves 
the exercise of dominion or control by the police over a person or item. According 
to the Supreme Court, ‘ ‘a seizure occurs when there is some meaningful interfer¬ 
ence with an individual’s possessory interests in the property seized” ( Maryland 
v. Macon, 472 U.S. 413 (1985)). 

Who determines when a detention has occurred? According to the Supreme 
Court, a detention occurs when a reasonable person, viewing the particular police 
conduct as a whole and within the setting of all the surrounding circumstances, 
would have concluded that the police had in some way restrained his or her liberty 
so that he or she was not free to leave ( Michigan v. Chesternutt, 486 U.S. 567 
(1988)). 

A. When an Officer May Arrest 

Individuals may be arrested pursuant to an arrest warrant, or a police officer may 
arrest an individual without a warrant if there is probable cause to believe a 
criminal act has occurred. Warrantless arrests are generally restricted to misde¬ 
meanors observed by the officer and felonies when the crime is committed in 
the presence of the officer or the arrest occurs in a public place. Police officers 
may not make a warrantless arrest in a private dwelling unless there are exigent 
(or emergency) circumstances, such as a fleeing suspect, or danger to bystanders, 
or the police obtain consent to enter ( Payton v. New York, 445 U.S. 573 (1980)). 

B. Manner of Arrest 

Police officers may use whatever force is reasonable under the circumstances to 
make an arrest. Deadly force is permitted only when it is necessary to protect 



Criminal Procedure 


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the life of the police officer, victim or innocent bystanders. Deadly force may 
be used to prevent escape only if the officer has probable cause to believe the 
suspect poses an immediate threat of serious harm to the officer or others ( Tennes¬ 
see v. Garner, 471 U.S. 1 (1985)). 

Police officers executing an arrest or search warrant at a private dwelling 
are required to knock and announce their presence and purpose and provide occu¬ 
pants of a dwelling a reasonable amount of time to answer the door. This common 
law principle has recently been endorsed by the Supreme Court, which has also 
suggested that the common law exceptions to the knock and announce rule may 
apply (Wilson v. Arkansas, 115 S.Ct. 1914 (1995)). These exceptions, or in¬ 
stances when the police may ignore the rule of announcement include when there 
is reason to believe escape is likely, evidence will be destroyed, or officers may 
be injured if notice is given. This is an area of criminal procedure law that is 
still in the early stages of development, as police experiment with knock and talk 
investigations, where they seek to search houses at random, and seek no-knock 
warrants for broad classes of offenses such as drug possession and sales (Hem- 
mens, 1997). 

C. Types of Seizures 

Police may ask questions of anyone in public. This does not constitute an arrest 
or even a seizure. In such on-the-street encounters, citizens remain free to leave 
and even ignore the police officer’s question. While doing so may arouse suspi¬ 
cion and/or resentment, it does not create probable cause to arrest. 

Some encounters with the police do not rise to the level of an arrest but 
are more intrusive than mere on-the-street encounters. These types of detentions, 
sometime characterized as seizure tantamount to arrest, do not require probable 
cause but do require more than mere suspicion. These encounters are classified 
as seizures, but not full arrests. Examples include traffic stops, border searches 
for drug couriers, and stop and frisks on the street (LaFave, 1996). 

D. Stop and Frisk 

A stop and frisk involves a police officer stopping a person in public and ques¬ 
tioning him or her as to identity and activity, followed in some circumstances 
by a limited, pat-down search of the outer clothing. Stop and frisk procedures 
were endorsed by the Supreme Court in Terry v. Ohio (392 U.S. 1 (1968)), and 
are sometimes referred to as Terry stops or investigative detentions. In Terry’, 
the Court attempted to balance the interests of law enforcement with individual 
rights in situations in which police do not have probable cause to arrest but do 
possess a lower quantum of proof of criminal activity, referred to by the Court 
as reasonable suspicion. This level of proof has been defined by the Supreme 



190 


Hemmens 


Court as “a less demanding standard than probable cause . . . that can be estab¬ 
lished with information that is different in quantity or content . . . [and it] can 
arise from information that is less reliable'’ ( Alabama v. White, 496 U.S. 325 
(1990)). 

While a stop and frisk is not an arrest, it is a form of seizure and search. 
Consequently, the Fourth Amendment does apply. Since the stop is not an arrest 
and the frisk is not a full search, the Court has determined that probable cause 
is not necessary; instead, all that is needed is reasonable suspicion. 

There are two distinct parts of the encounter: the stop and the frisk. To 
stop an individual, a police officer must have reasonable suspicion, based on 
experience, that a crime has occurred or is about to occur. Such an investigatory 
stop must be temporary and no longer than necessary under the circumstances 
to achieve its purpose. The officer may ask questions intended to dispel any 
suspicions of criminal activity and alleviate any concern for the officer’s safety. 

If, and only if, the investigatory stop does not allay the officer’s reasonable 
suspicion of the suspect, may the detained individual be frisked. A frisk does not 
automatically follow from a stop. The Court has made clear that the sole purpose 
of a frisk is protection; it is not to ferret out evidence of criminal activity. The 
frisk itself is defined as a pat-down of the suspect’s outer clothing. Any object 
that the officer reasonably believes may be a weapon may be properly seized. 
The officer may not manipulate items he or she feels in or under the outer clothing 
in an attempt to discern what they are when there is no reason to suspect that 
they are weapons ( Minnesota v. Dickerson, 508 U.S. 366 (1993)). 

E. Vehicle Stops 

Vehicles, by virtue of their mobility, present a particularly difficult situation for 
both law enforcement and the courts. A seizure occurs every time a vehicle is 
stopped, even if the purpose of the stop is limited to issuing a traffic ticket or 
warning ( Delaware v. Prouse, 440 U.S. 648 (1979)). Every vehicle stop is a 
seizure, but not every seizure of a vehicle requires either probable cause or a 
warrant because the nature of some stops is not very intrusive. Generally, police 
must have at least reasonable suspicion of criminal activity to stop a vehicle, 
excepting roadblocks to check for drunk driving, illegal aliens, licenses, and reg¬ 
istration papers. In these instances, the Supreme Court has allowed police to 
stop cars without any individualized suspicion of wrongdoing and justified this 
determination by balancing the slight intrusion of the stop against the public 
interest served by the seizure ( Michigan Department of State Police v. Sitz, 496 
U.S. 444 (1990)). 

Once a vehicle has been stopped, the police officer is authorized to ask the 
driver to exit the vehicle. This is true even if the stop is for a minor traffic viola¬ 
tion. Additionally, if the officer reasonably fears for his or her safety after the 



Criminal Procedure 


191 


driver has exited the vehicle, the officer may conduct a frisk for weapons ( Penn¬ 
sylvania v. Mimms, 434 U.S. 106 (1977)). The Supreme Court has recently ex¬ 
tended the Mimms rationale to permit officers to order passengers out of the 
vehicle as well even when there is absolutely no indication of wrongdoing on 
the part of the passenger ( Maryland v. Wilson, 117 S.Ct. 882 (1997)). The officer 
may also request vehicle identification and other licensing documents, examine 
the vehicle identification number, and ask questions of both the driver and occu¬ 
pants. The officer may also seek consent from the driver to search the vehicle 
without informing the driver that the initial stop is over and the driver is free to 
leave ( Ohio v. Robinette , 117 S.Ct. 417 (1997)). 


IV. SEARCHES 

A search is the examination of an individual’s house, person, or effects to dis¬ 
cover items related to criminal activity. Effects includes papers, cars, and similar 
items. Items sought may include contraband, stolen items, tools used to commit 
the crime, or evidence of crime. A search may occur anywhere that a person has 
a reasonable expectation of privacy (Katz v. United States , 389 U.S. 347 (1967)), 
defined below. 


A. Reasonable Expectation of Privacy 

The concept of reasonable expectation of privacy is a relatively recent addition 
to criminal procedure law. Until the Katz decision in 1967 courts, seeking to 
determine when a search has occurred, focused on whether police conduct in¬ 
fringed upon a property interest, meaning an area afforded constitutional protec¬ 
tion. If so, then the police conduct constituted a search and the protections of 
the Fourth Amendment applied. The decision in Katz abandoned the property 
analysis in favor of a consideration of the expectation of privacy the individual 
and society had in a given situation. 

A reasonable expectation of privacy has subjective and objective compo¬ 
nents: the subject of the search must have a subjective expectation of privacy, 
and society must view that expectation as reasonable (Slobogin and Schumacher, 
1993). 

B. Exceptions to the Search Warrant Requirement 

Although police are generally required to obtain a search warrant, the Supreme 
Court has held that a variety of exigent circumstances justifies a warrantless 
search. There are also several actions not considered searches so that the Fourth 



192 


Hemmens 


Amendment does not apply. These exceptions have been developed by the Su¬ 
preme Court on a case-by-case basis. 

1. Search Incident to Arrest 

Police officers making a valid arrest of a suspect may conduct a full search both 
of the suspect and the area within the suspect’s immediate control (Chirnel v. 
California , 395 U.S. 752 (1969)). This search must occur at the same time as 
the arrest, with the scope of the search including anywhere on the person and 
the lunge area, or immediate vicinity of the suspect. For instance, police arresting 
someone in a house may search the room where the arrest occurs but cannot, 
under the search incident exception, search other rooms in the house. The justifi¬ 
cations for this exception include promotion of officer safety, prevention of evi¬ 
dence destruction, and prevention of escape. The search incident exception ap¬ 
plies to all custodial arrests, regardless of the severity of the offense for which 
the person is being arrested. So long as the person is being taken into custody, 
a search incident may be performed. The exception does not apply to situations 
such as traffic stops, which are detentions but in which no arrest occurs. 

2. Consent 

If police obtain an individual’s consent to search, there is no need for probable 
cause or a search warrant. A search based on consent is not a search for Fourth 
Amendment purposes; the Fourth Amendment simply does not apply. Police may 
ask anyone for consent to search without a basis for doing so. 

However, there are some limitations on consent searches. First, consent 
must be both voluntary and intelligent. This means that the police must demon¬ 
strate that the suspect’s consent was not obtained as the result of coercion or 
force and that the suspect understood the consequences of consent. Police are 
not required to inform suspects of their right to refuse consent, however. Second, 
consent must be unequivocal. Silence in the face of a request to search does not 
necessarily mean consent has been given. Police officers frequently seek written 
consent to document that consent was in fact obtained. Third, consent may be 
limited to a particular area or time and may be withdrawn at any time. Fourth, 
valid consent to search may be obtained only from a person with the authority 
to consent (Hemmens and Maahs, 1997). 

3. Vehicles 

The Supreme Court has ruled that the inherent mobility of vehicles lessens the 
opportunity to obtain a search warrant (Carroll v. United States, 267 U.S. 132 
(1925)). The Court has also noted that there is a lessened expectation of privacy 
in a vehicle out on the public thoroughfare. While the warrant requirement is 



Criminal Procedure 


193 


relaxed, the probable cause requirement is not. To search a vehicle without a 
warrant, the police must be able to demonstrate that there exists probable cause 
to search and establish that the vehicle is mobile. This mobility creates the emer¬ 
gency justifying relaxation of the warrant requirement. 

a. Vehicle Search Incident to Arrest 

When a police officer arrests the driver of a car, a warrantless search of the 
passenger compartment of the car may be conducted, including any containers 
that may reasonably hold a weapon or evidence of the crime for which the driver 
has been arrested. A container is any item capable of holding something, includ¬ 
ing luggage, boxes, bags, glove compartment, or other receptacles ( New York v. 
Belton, 453 U.S. 454 (1981)). 

Excluded from the scope of this search is any person in the passenger com¬ 
partment of vehicle who is not being arrested. The passenger compartment in¬ 
cludes the interior of the car and excludes the trunk and engine compartment if 
these are not readily accessible from the passenger compartment. 

The search of the car may be conducted after the officer has placed the 
driver in the police cruiser for transport to the police station ( Chimel v. California. 
395 U.S. 752 (1969)). This rule applies to all custodial arrests, regardless of the 
nature of the offense. However, it does not apply to traffic stops or other deten¬ 
tions when the driver is not being taken into custody. If, however, the police 
observe contraband or other evidence in the passenger compartment during a 
lawful traffic stop, the item may be seized under the plain view doctrine. 

b. Car Searches: When There's Probable Cause to Search a 
Container in the Car 

When police have probable cause to search a container placed in a vehicle the 
police do not have probable cause to search in its entirety, the police may nonethe¬ 
less search the container without a warrant ( California v. Acevedo, 500 U.S. 565 
(1991)). This is because the container is within the vehicle, and therefore subject 
to the automobile exception. 

c. Inventory Searches 

As a matter of policy many police departments impound and/or inventory vehi¬ 
cles after the driver is arrested. This procedure is intended to protect the property 
of the person arrested, as well as the department from lawsuits alleging theft of 
personal property within the vehicle. The Supreme Court has upheld warrantless 
inventory searches, so long as the inventory search is routinely conducted by the 
department, and not done as a pretext to search for evidence or contraband ( Flor¬ 
ida v. Wells, 495 U.S. 1 (1990)). The Court has also upheld warrantless searches 
conducted of impounded vehicles, even when the driver has not been arrested 
(South Dakota v. Opperman, 428 U.S. 364 (1976)). 



194 


Hemmens 


d. Use of Tracking Devices in Vehicles 

Because a person traveling on a public roadway does not have a reasonable expec¬ 
tation of privacy, surveillance, including the installation of electronic tracking 
devices, is permissible. Monitoring of these devices is not permissible when the 
vehicle is in a private dwelling because there is a heightened expectation of pri¬ 
vacy in a dwelling or on private property ( United States v. Karo , 468 U.S. 705 
(1984)). 

e. Plain View and Vehicles 

According to the plain view doctrine, “Objects falling in the plain view of an 
officer who has a right to be in a position to have that view are subject to seizure” 
(Harris v. United States, 390 U.S. 234 (1968)). The plain view doctrine is not 
actually an exception to the Fourth Amendment, but rather another instance of 
the protections of that Amendment simply not applying. When an officer lawfully 
observes something, a search for Fourth Amendment purposes is not being con¬ 
ducted. Hence no warrant or probable cause is required. The Court at one time 
suggested that such observations must be inadvertent, but has recently retreated 
from that requirement ( Horton v. California, 496 U.S. 128 (1990)). 

The plain view doctrine is just that. It is limited to seizure of items an 
officer sees. It does not apply to items discovered by touch, smell, or any other 
of the senses. However, police may use tools that aid them in their observation, 
such as a flashlight ( Texas v. Brown, 460 U.S. 730 (1983)). Furthermore, the 
officer must be lawfully present at the spot where the item is observed. If an 
officer enters a dwelling illegally, he or she may not take advantage of the plain 
view doctrine. Finally, it must be ‘ ‘immediately apparent’ ’ that the item observed 
is seizable, as contraband, evidence of a crime, or fruits of a crime ( Arizona v. 
Hicks, 480 U.S. 321 (1987)). This means the officer may not manipulate the item 
in order to learn more about it. Instead, the officer must be able to tell, just by 
glancing at the item, that it is seizable. 


4. Open Fields 

Certain areas outside the home are classified as open fields. Items in open fields 
do not fall under the protection of the Fourth Amendment, since they are not 
“house, papers and effects” ( Hester v. United States, 265 U.S. 57 (1924)). By 
open fields the Court means land that is not part of the curtilage. 

Curtilage is the land and buildings immediately surrounding and intimately 
associated with a dwelling. This includes fenced areas incorporating the house, 
garages, and other buildings used primarily for domestic purposes such as a shop 
or washroom. Curtilage is essentially an extension of the home. Any land deemed 
outside the curtilage is considered open fields. This is true even if the land is not 



Criminal Procedure 


195 


open and not a field. The doctrine applies to fields, forests, and other land forma¬ 
tions equally (LaFave, 1996). 

As with items in plain view, items in open fields may be seized without a 
warrant or probable cause. Unlike the plain view doctrine, police need not be 
lawfully in an area considered open fields in order to seize an item observed 
there. Under this doctrine, officers may seize and use evidence in court they 
obtain while trespassing. 

While the curtilage is protected by the Fourth Amendment, it does not 
receive the level of protection afforded the interior of the home. The Supreme 
Court has permitted aerial surveillance of the curtilage on the theory that there 
is not the same expectation of privacy in the curtilage as inside the home ( Califor¬ 
nia v. Ciraolo , 476 U.S. 207 (1986)). 

5. Abandoned Property 

Abandoned property is not protected by the Fourth Amendment because the per¬ 
son abandoning it has shown a willingness to give up control and dominion of 
the item. It belongs to no one. Consequently, abandoned property may be seized 
without a warrant or probable cause. The key is determining when abandonment 
has occurred. This depends on where the item is discarded and the intent of the 
person discarding the item. 

Intent to abandon may be inferred from the manner the item is discarded. 
Items tossed to the ground accompanied by a statement such as, “I don’t want 
this,” clearly have been abandoned, as have items left behind and not retrieved 
for a substantial period of time. Intent to abandon may also be inferred from the 
location of the abandonment. A textbook left behind in a classroom may have 
been abandoned, but it is unclear without further information. Items thrown in 
the trash in public are considered abandoned, but items thrown in the trash on 
private property are not considered abandoned until the trash is placed outside 
the curtilage of the home for regular collection (California v. Greenwood, 486 
U.S. 35 (1988)). 

6. Special Needs of Law Enforcement 

This exception is actually a series of exceptions to the search warrant require¬ 
ment, applied in cases that are a mixture of criminal investigation and conduct 
by other, non-police-related, public agencies. Examples include searches of stu¬ 
dents by school authorities, searches of closely regulated businesses, and searches 
of probationers and parolees. In these instances, the Court has held that searches 
may be conducted both without a warrant and on less than probable cause and 
without individualized suspicion. 

The justification for such searches varies according to the subject of the 
search. What these searches have in common is the Court’s willingness to balance 



196 


Hemmens 


the limited intrusion on individual rights against the governmental interest (such 
as school security and product safety). The limited intrusion on individual liberty 
permitted by the Court is often characterized as de minimis, or insignificant 
(Stuntz, 1992). 


V. INTERROGATIONS AND PRETRIAL IDENTIFICATION 
PROCEDURES 

Often one of the most important sources of evidence in a criminal investigation 
is the suspect. A significant number of cases are solved through obtaining a con¬ 
fession from the suspect; many others are solved in large part through the use 
of eyewitness identifications of the perpetrator. While the Fourth Amendment 
governs most search and seizure situations, the Fifth and Sixth Amendments regu¬ 
late situations involving interrogation of criminal suspects and identification pro¬ 
cedures. 

A. Interrogations and Confessions 

The Fifth Amendment provides that no one shall be compelled to incriminate 
him- or herself. Self-incrimination cannot be compelled, but it is permitted His¬ 
torically, courts admitted any confession, so long as it was obtained voluntarily. 
Precisely what constitutes a voluntary statement has evolved over the years. In 
a series of cases, the Supreme Court determined that confessions obtained through 
the use of physical force or psychological coercion were involuntary. In 1964 
the Court held that a criminal defendant had a right to counsel once the police 
investigation “is no longer a general inquiry, but has begun to focus on the defen¬ 
dant” (Escobedo v. Illinois, 378 U.S. 748 (1964)). 

Two years later, in Miranda v. Arizona (384 U.S. 436 (1966)), the Supreme 
Court held that evidence obtained by the police during a custodial interrogation 
of a suspect could not be used at trial unless the suspect was first informed of 
both his or her privilege against self-incrimination and his or her right to counsel. 
Miranda is probably the most controversial criminal procedure decision ever 
handed down by the Supreme Court, in part because police feared it would lead 
to a dramatic reduction in confessions. The decision was prescriptive in nature. 

The Court did not merely hold that police must inform a suspect of his or 
her rights but also set forth exactly what the police should say to the suspect. 
Suspects must be told that they have a right to remain silent, that anything they 
say can be used against them in court, that they have a right to have an attorney 
present during questioning, and that if they cannot afford an attorney, one will 
be appointed for them prior to any questioning. Any person subject to custodial 
interrogation is entitled to the so-called Miranda warning; however, questioning 



Criminal Procedure 


197 


of a motorist during a routine traffic stop does not constitute custodial interroga¬ 
tion (Berkemer v. McCarty, 468 U.S. 420 (1984)). 


1. Custody 

Miranda warnings are required when there is a custodial interrogation. Custody 
has been defined as when the suspect “has been subjected to a formal arrest or 
to equivalent restraints on his freedom of movement” (California v. Beheler, 
463 U.S. 1121 (1983)). It is fairly obvious when a full arrest has occurred. The 
more difficult situation is determining when a person has been deprived of his 
or her freedom in a significant way. The test for this is whether a reasonable 
person in the suspect’s position would conclude that he or she is not free to leave. 
Factors considered by the courts in this determination include the actions of the 
police, the location of the encounter, and the time of the encounter (Caplan, 1985; 
Schulhofer, 1987). If a reasonable person would conclude that he or she could 
not leave, then that person is in custody. 


2. Interrogation 

Miranda warnings are not triggered by custody alone, however. The warnings 
are required only when there is both custody and interrogation. What, then, is 
interrogation? Interrogation occurs when police are asking questions whose an¬ 
swers may incriminate and in circumstances in which the police, through their 
actions, create the functional equivalent of an interrogation. This occurs when 
the police engage in activity they “should know is reasonably likely to evoke 
an incriminating response from a suspect” (Rhode Island v. Innis, 446 U.S. 291 
(1980)). Such activity includes making statements to the suspect likely to provoke 
a response. 


3. Circumstances in Which Miranda is Not Required 

There are a number of situations in which Miranda warnings need not be given. 
If there is not both custody and interrogation, Miranda warnings are not required. 
Examples of situations the Court has held as not constituting custody include 
routine traffic stops and sobriety checkpoints. Examples of situations the Court 
has held as not constituting interrogation include conversations between two of¬ 
ficers in the vicinity of the suspect, situations in which someone volunteers a 
statement without prompting, routine questioning of persons at the scene of a 
crime, questions intended to clarify an ambiguous response, questions that are 
part of a stop and frisk, and threats to public safety (New York v. Quarles, 467 
U.S. 649 (1984)). 



198 


Hemmens 


4. Extension and Application of the Miranda Warnings 

The Supreme Court has in recent years decided a number of cases involving the 
Miranda warnings. The Court has held that once a suspect has invoked his or 
her right to remain silent until he or she meets with a lawyer, police may not 
question him or her further unless the suspect initiates further communication 
(Edwards v. Arizona, 451 U.S. 477 (1981)). The Court has also held that once 
a suspect invokes his or her right to counsel, he or she may not be questioned 
about an offense unrelated to the offense for which he or she was arrested and 
asserted his or her rights ( Arizona v. Roberson, 480 U.S. 675 (1988)). While 
these decisions clarify and extend Miranda, most of the decisions have restricted 
the reach of Miranda. 

There are a number of instances in which the Supreme Court has refused 
to exclude incriminating statements and has limited the reach of the Miranda 
decision. For instance, the failure of the police to inform a suspect that an attorney 
retained by a family member for him without his knowledge attempted to reach 
him does not invalidate a confession obtained by the police because the suspect 
did not know he had a lawyer, and did not ask for one ( Moran v. Burbine , 475 
U.S. 412 (1986)). 

In another case, the Court held that a police officer, posing as an inmate, 
need not provide Miranda warnings to a suspect in jail before asking her incrimi¬ 
nating questions because there is no coercive atmosphere ( Illinois v. Perkins, 
495 U.S. 292 (1990)). Furthermore, requesting a lawyer at a bail hearing is not 
considered an invocation of the suspect’s right to counsel for crimes he or she 
has not yet been charged with. This is because the request is construed as limited 
to the Sixth Amendment right to counsel at trial, not as an invocation of the Fifth 
Amendment right to counsel prior to questioning ( McNeil v. Wisconsin, 501 U.S. 
173 (1991)). The Fifth Amendment right to counsel exists to protect the privilege 
against self-incrimination, while the Sixth Amendment right to counsel exists to 
ensure that the defendant receives a fair trial. 

If police obtain a voluntary but unwarned confession, they may still give 
the proper Miranda warnings and then obtain the confession again, even though 
the suspect may not realize that the initial confession is inadmissible ( Oregon v. 
Elstad, 470 U.S. 298 (1985)). An illegally obtained confession may also be admit¬ 
ted at trial if it is used solely to impeach the testimony of the defendant (Harris 
v. New York, 401 U.S. 222 (1971)). Finally, the rights mentioned in the Miranda 
warnings may be waived so long as the waiver is knowing, intelligent, and volun¬ 
tary. 

B. Pretrial Identification Procedures 

Police have long acknowledged that a pretrial confrontation of a criminal suspect 
and the witness is both a common and effective investigatory tool. Eyewitness 



Criminal Procedure 


199 


identifications are notoriously unreliable, however, and the Supreme Court has 
held that a criminal defendant has a right to counsel, not only at trial, but at any 
critical stage in the criminal proceedings. Reconciling the competing interests of 
individual liberty with crime investigation has led to some unusual results in this 
area. 

There are three types of pretrial identification procedures: show-ups, line¬ 
ups, and photo arrays. Show-ups involve showing one suspect to a witness, usu¬ 
ally at or close to the crime scene, very soon after the crime has occurred. Line¬ 
ups involve showing several people to the witness at one time, usually at the 
police station, and asking the witness to select the suspect. A photo array is 
similar to a line-up, but photographs are substituted for actual persons. 

The question that arises in regard to pretrial identification procedures is: 
What rights does a suspect have during a show-up, line-up. or photo array? Show- 
ups may be conducted without counsel present, on the ground that eyewitness 
identifications are more likely to be accurate if they take place soon after the 
event, and exigent circumstances justify an immediate confrontation. Addition¬ 
ally, the suspect has not yet been charged with a crime, and thus the investigation 
has not yet focused on him or her (Escobedo v. Illinois, 378 U.S. 478 (1964). 
The rule for photo arrays is that there is no right to have counsel present, even 
if charges have already been filed (United Stales v. Ash , 413 U.S. 300 (1973)). 
This is because the reliability of the photo array can be challenged later since 
there is a record of the process. Therefore, a record of the photos used in the 
array must be maintained. 

The rule for line-ups is different. According to two decisions, decided 5 
years apart, the Supreme Court held that a suspect has a right to counsel at a 
line-up, if it occurs after criminal charges have been filed (United States v. Wade, 
388 U.S. 218 (1967)), but that no right to counsel exists if the line-up takes place 
prior to charges being filed (Kirby v. Illinois, 406 U.S. 682 (1972)). The rationale 
for providing the right to counsel at a postindictment line-up is that such an event 
now constitutes a critical stage in the prosecution. Because there is the potential 
for prejudicial error at such events, a lawyer can help to make sure that the proce¬ 
dure is conducted properly. If it is not, the attorney has a record by which to 
challenge the identification procedure at trial (Grano, 1974). 


VI. THE EXCLUSIONARY RULE 

The exclusionary rule is a judicially created remedy for violations of the Fourth 
Amendment (Mertens and Wasserstrom, 1981). It provides that any evidence 
obtained by the government in violation of the Fourth Amendment guarantee 
against unreasonable searches and seizures is not admissible in a criminal trial 
to prove guilt. Without a means of enforcing this guarantee through deterrence 



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of police misconduct, the Fourth Amendment is reduced to a ‘ ‘form of words’ ’ 
(.Mapp v. Ohio, 467 U.S. 643 (1961)) because police have no incentive to act 
lawfully. There are, however, a number of limitations on the scope of the rule 
as well as several exceptions to the rule. 

A. History 

In 1914 the Supreme Court held that evidence illegally obtained by federal law 
enforcement officers was not admissible in federal criminal prosecutions (Weeks 
v. United States, 232 U.S. 383 (1914)). Because the Weeks decision applied only 
against the federal government, state law enforcement officers were still free to 
seize evidence illegally without fear of exclusion in state criminal proceedings. 
Additionally, evidence seized illegally by state police could be turned over to 
federal law enforcement officers for use in federal prosecutions because federal 
law enforcement officers were not directly involved in the illegal seizure. This 
was known as the silver platter doctrine because illegally seized evidence could 
be turned over to federal law enforcement officers “as if on a silver platter” 
(LaFave, 1996). In 1949 the Supreme Court applied the Fourth Amendment 
against the states, incorporating it into the Fourteenth Amendment. However, the 
Court refused to apply the remedy of the exclusionary rule to the states (Wolf v. 
Colorado, 338 U.S. 25 (1949)). Twelve years later the Court took the step it 
failed to take in Wolf and applied the exclusionary rule to the states. The Court 
did so because it acknowledged the states had failed to provide adequate remedies 
for Fourth Amendment violations committed by state police officers (Mapp v. 
Ohio, 467 U.S. 643 (1961)). 

B. Purpose of the Exclusionary Rule 

The Supreme Court has stated that the exclusionary rule serves at least two pur¬ 
poses: the deterrence of police misconduct and the protection of judicial integrity 
(Mapp v. Ohio, 467 U.S. 643 (1961)). In recent years, however, the Court has 
emphasized almost exclusively the deterrence of police misconduct, leading to 
the creation of several exceptions to the rule. While courts and commentators 
have suggested there are alternative means of enforcing the Fourth Amendment, 
such as civil suits for damages, criminal prosecutions of police engaged in illegal 
activity, and administrative sanctions (Loewy, 1989), the Supreme Court con¬ 
cluded in Mapp that these alternative means of enforcing the Fourth Amendment 
were ineffectual. 

C. Exceptions to the Rule and Proceedings in Which It 
Does Not Apply 

The exclusionary rule has been severely criticized by a number of courts and 
commentators. It has not been overruled, however, although the Supreme Court 



Criminal Procedure 


201 


has in recent years carved out several exceptions to the rule. There are also a 
number of proceedings in which the exclusionary rule does not apply. 

1. Proceedings in Which the Exclusionary Rule Is Not Used 

Both the Weeks and Mapp decisions involved criminal trials. The Supreme Court 
has been reluctant to extend the exclusionary rule to other proceedings even if 
there is a potential for loss of liberty. The Court has held that the exclusionary 
rule does not apply in civil cases and grand jury investigations, and recently held 
that it also does not apply to parole revocation hearings ( Pennsylvania Board of 
Probation and Parole v. Scott, 118 S.Ct. 2014 (1998)). Illegally seized evidence 
may be admitted in a criminal trial if the purpose for admitting the evidence is 
not to prove guilt. Thus illegally obtained evidence may be used to impeach a 
defendant’s testimony or to determine the appropriate sentence. 

2. Good Faith Exception 

The Supreme Court has held that evidence obtained by police acting upon a 
search warrant later determined to be invalid may be admitted at trial ( Massachu¬ 
setts v. Sheppard, 468 U.S. 981 (1984)). The police must be acting in good faith, 
meaning that they were unaware that the warrant was invalid. The Court has 
recently extended this rationale to allow the introduction of evidence obtained 
by the police acting in good faith reliance upon an arrest warrant issued by court 
personnel later discovered to be void ( Arizona v. Evans, 115 S.Ct. 1185 (1994)). 
The rationale for the good faith exception is that excluding evidence obtained 
by police who have not knowingly violated the Fourth Amendment and who 
relied in good faith on other actors in the criminal justice system does not serve 
the purpose of deterring police misconduct, which is the primary goal of the 
exclusionary rule. The good faith exception does not apply to errors made by 
the police, even if the errors were entirely inadvertent. It applies only to situations 
in which the police relied on others who, it later turns out, made a mistake. 

3. Inevitable Discovery Exception 

The inevitable discovery exception permits the use at trial of illegally obtained 
evidence if the police can demonstrate that they would have discovered the evi¬ 
dence anyway by legal means (Nix v. Williams, 467 U.S. 431 (1984)). The burden 
is on the police to prove they would in fact have discovered the evidence lawfully, 
even if they had not acted illegally. 

VII. SUMMARY 

Criminal procedure law is constantly evolving as police resort to new tactics and 
technologies in their war on crime. The courts, as interpreters of the Constitution, 



202 


Hemmens 


are continually struggling to maintain the proper balance between the competing 
interests of law enforcement and individual privacy. The Bill of Rights provides 
a number of broad individual protections and the Supreme Court has endeavored 
to develop more precise, understandable parameters of these protections. 

The Fourth Amendment prohibits unreasonable searches and seizures, but 
the Court has not applied this standard blindly, developing the concepts of reason¬ 
able suspicion and permitting techniques such as stop and frisks. In some in¬ 
stances the Court has created clear rules for police conduct, such as the exclusion¬ 
ary rule and the Miranda warnings. In other instances the Court has resorted to 
a case-by-case mode of analysis, sometimes leaving law enforcement unsure of 
what is permitted in a particular case. This confusion is to some degree unavoid¬ 
able, since the abstract legal doctrines comprising criminal procedure law are 
constantly challenged by new technologies, new fact patterns, and a changing 
political climate. 

The Supreme Court is both a legal and political institution, and its decisions 
invariably are affected to some degree by public opinion about crime. What is 
unreasonable today may not have been unreasonable 50 years ago. 


REFERENCES 

Abadinsky, H. (1998). Law and Justice, 4th ed, Nelson-Hall, New York. 

Abrahamson, S. S. (1985). Criminal law and state constitutions: The emergence of state 
constitutional law, Texas Law Rev. 63: 1141. 

Amar, A. R. (1994). Fourth amendment first principles, Harvard Law Rev. 107: 757. 

Caplan, G. M. (1985). Questioning Miranda, Vanderbilt Law Rev. 38: 1417. 

Cuddihy, W. (1990). The Fourth Ametidment: Origins and Original Meaning, unpublished 
doctoral dissertation, Claremont, CA. 

Grano, J. D. (1974). Kirby, Biggers and Ash: Do any constitutional safeguards remain 
against the danger of convicting the innocent? Michigan Law Rev. 72: 111. 

Hemmens, C. (1997). The police, the Fourth Amendment, and unannounced entry: Wilson 
v. Arkansas, Criminal Law Bull. 55(1): 29. 

Hemmens, C., and J. R. Maahs. (1996). Reason to believe: When does detention end and 
a consensual encounter begin? An analysis of Ohio v. Robinette, Ohio Northern 
Law Rev. 23(2): 309. 

Hemmens, C., del Carmen, R. V., and Scarborough, K. E. (1997). Grave doubts about 
“reasonable doubt”: Confusion in state and federal courts, /. Criminal Justice, 
25(3): 231. 

LaFave, W. R. (1996). Search and Seizure: A Treatise on the Fourth Amendment, 3rd ed. 
West, Minneapolis, MN. 

Loewy, A. H. (1989). Police-obtained evidence and the Constitution: Distinguishing un¬ 
constitutionally obtained evidence from unconstitutionally used evidence, Michigan 
Law Rev. 87: 907. 



Criminal Procedure 


203 


Mertens, W. J., and Wasserstrom, S. (1981). The good faith exception to the exclusionary 
rule: Deregulating the police and derailing the law, Georgetown Law J. 70: 365. 

Packer, H. (1964). Two models of the criminal process, Univ. Penn. Law Rev. 113: 1. 

Schulhofer, S. J. (1987). Reconsidering Miranda, Univ. Chicago Law Rev. 54: 435. 

Slobogin, C., and Schumacher, J. E. (1993). Reasonable expectations of privacy and auton¬ 
omy in Fourth Amendment cases: An empirical look at “understandings recognized 
and permitted by society,” Duke Law J. 42: 727. 

Stuntz, W. J. (1992). Implicit bargains, government power, and the Fourth Amendment, 
Stanford Law Rev. 44: 553. 

Tribe, L. H. (1968). American Constitutional Law, West Publishing, St. Paul, MN. 



This Page I nbentionally Left Blank 



12 

Criminal Trial Process 


Janice Schuetz 

University of New Mexico, Albuquerque, New Mexico 


Media reports of high-publicity cases, such as those involving William Kennedy 
Smith, O. J. Simpson, Timothy McVeigh, and Louise Woodward, are one way 
historians will remember the last decade of the 20th century. The media coverage 
of these cases began at the time the charges were filed and continued long after 
jurors had reached a verdict. Most of what the average citizen knows about the 
trial process comes from media accounts of sensational cases. 

The goal of this chapter is to expand readers’ knowledge about criminal 
trial process by identifying some underlying principles that affect the media’s 
coverage of legal proceedings, the processes of jury selection and deliberation, 
the design of opening statements, the strategies of examining witnesses, and the 
design of final summations. The emphasis of this explanation is on legal proce¬ 
dures and communication processes. 


I. MEDIA COVERAGE OF LEGAL PROCEEDINGS 

Throughout American history the media have covered high-profile trials. Shortly 
after the arrival of the Puritans in the late 1600s, pamphleteers proclaimed the 
sins of those about to be hanged (Aly, 1969). Politically motivated reporters recre¬ 
ated the treason trial of Aaron Burr in newspapers of the early 1800s. Publicity 
about the trial of Harvard Professor, John W. Webster, in 1850 resulted in over 
60,000 people attending some part of his trial (Lofton, 1966:26). By the end of 
the 19th century, the Penny Press published news of thousands of crimes and 
trials for its readers (Lofton, 1966). The advent of radio in the 1920s resulted in 
extensive live commentary on the trial of Richard Bruno Hauptmann, who was 


205 



206 


Schuetz 


executed for the murder of the Lindbergh baby (Schuetz and Snedaker, 1988: 
72-98). 

By the 1980s all states except three permitted cameras in the state trial 
courts under the discretion of the judge (Graham, 1998:34). The availability of 
cable television (CNN, CNBC, and Court TV) increased public access to live 
coverage of trial proceedings. Tensions have always existed between the media’s 
desire to cover the trial and the court’s demand to protect the accused. Journalist 
L. W. Denniston (1980:6) explains this tension: 

The journalist tells the story moving from the most significant to least, the 
lawyer moves in an opposite direction; the journalist wants immediate im¬ 
pact, the lawyer wants contemplated decisions: the journalist looks for the 
novel, the attorney for the familiar; the journalist is fascinated with the illogi¬ 
cal; the attorney tries to establish a logic. 

These tensions have produced extensive case law about how the press 
should cover crime. The resulting appellate decisions stress that the press should 
have access to the court proceedings, the accused should get due process, and 
the victims should have a right to privacy. Some of these landmark decisions 
allow the court to resolve conflicts between the First Amendment right of the 
press to cover criminal trials and the Sixth Amendment right of the accused to 
an impartial jury. Other rulings set boundaries on both sets of rights, protecting 
the accused against adverse pretrial publicity while favoring media access. 

A. Pretrial Publicity 

Several key decisions established boundaries for pretrial coverage of crimes. In 
Ir\’in v. Dowd (1959), the Court overturned a guilty verdict because the Indiana 
press had created negative pretrial publicity against an accused mass murderer, 
Lesley Irvin. This decision claimed that the media erred by reporting that the 
defendant was identified in police lineup, failed a lie detector test, was observed 
at the crime scene by witnesses, and confessed to six murders. The Court con¬ 
cluded that Irvin's right to a fair trial had been violated even though “each juror 
was sincere when he said that he would be fair and impartial to the petitioner.” 
The Court claimed that “such a statement can be given little weight” (p. 728) 
since adverse pretrial publicity likely influenced the jurors to decide a guilty 
verdict. 

A second dramatic incident of prejudicial pretrial coverage occurred in 
Sheppard v. Maxwell (1966). In this decision, the Court overturned a guilty mur¬ 
der verdict against a prominent Cleveland physician, Sam Sheppard, because of 
adverse pretrial publicity. Not only did the Court reverse the conviction, but the 
justices also urged trial judges to take precautions to guard against adverse public¬ 
ity by recommending some of the following methods: rigorous questioning of 



Criminal Trial Process 


207 


members of the jury pool, change of venue, jury sequestration, gagging of the 
media, and silencing of trial participants (Schuetz and Snedaker, 1988:6). 

B. Press Access to Trials 

Cases involving prior restraint and gag orders established the strong First Amend¬ 
ment rights to cover cases. In cases using prior restraint, the Court has sided with 
the press. For example, in Nebr. Press Assoc, v. Stuart (1976), the trial judge 
restrained the press from printing information about Ervin Charles Simants, who 
was accused of killing six members of a family in a small Nebraska town. Al¬ 
though the press attended the trial, it could not publish what it heard in court 
because the trial judge ruled that this information was prejudicial to the accused. 

This case was overturned by the U.S. Supreme Court. Justice William Bren¬ 
nan reasoned that the press had the right to cover this case because ‘ ‘commentary 
and reporting of the criminal justice system is at the core of the First Amendment 
values, for the operation and integrity of that system.” He continued, ‘‘It is of 
crucial importance to citizens concerned with the administration of government” 
to be able to learn about a case that affects them (p. 539). 

Appeals courts view gag orders on the press as violations of their First 
Amendment rights. In 1976 a U.S. Senate Subcommittee stressed that trial judges 
should not gag the press unless the prejudicial impact “is a serious and imminent 
threat to the fair administration of justice” (Staff Report on Free Press-Fair Trial, 
1976:8). In any high-profile case, the trial court has the right to issue gag orders 
to limit the press from reporting on a trial and silence orders to restrict participants 
from talking about the case, as Judge Hiroshi Fugisaki did in the O. J. Simpson 
civil trial. 

Typically, however, the appellate courts view access to trials as essential 
to the press. For example, in Richmond Newspaper Inc v. Virginia (1980), defense 
attorneys asked the court to close the fourth trial of an alleged murderer because 
they argued that the media had the potential to report inaccurate information 
about the trial. Chief Justice Warren Burger’s majority opinion supported the 
access of the newspapers to the trial, claiming that “The right to attend criminal 
trials is implicit in the First Amendment; without the freedom to attend such 
trials, which people have exercised for centuries, important aspects of freedom 
of speech and ‘of press could be eviscerated’ ” (p. 555). 

The availability of technology has increased public access to legal informa¬ 
tion. Media coverage of criminal trials reaffirms the “public’s right to know” 
because it gives citizens a glimpse of how justice is achieved, and it creates the 
impression that the public is participating directly in the legal process. For exam¬ 
ple, Steve Brill, a proponent of televised litigation, claims that cameras in the 
court will educate the public about the justice system and increase public support 
for the courts. A position paper from Court TV explains its mission: “Television 



208 


Schuetz 


coverage of trials tells the whole, real, true story about a complicated, often mis¬ 
understood and under reported subject.” It permits citizens of a democracy “to 
judge for themselves” how well the judicial system is working (Caplan, 1996: 
203). This type of attitude promotes extensive coverage of trials that can affect 
both the selection of jurors and their deliberations. 

C. Processes of Jury Selection and Deliberation 

Although the jury has come under attack in recent years, judges throughout his¬ 
tory have offered eloquent affirmations about its importance. Justifications for 
jury trials include their ability to apply community standards, to allow participa¬ 
tion of citizens, to guard against arbitrariness of judges, and to provide for a 
collective conscience. Justice Hugo Black justified this system because he be¬ 
lieved it upheld community standards and guarded against corrupt judges. He 
explained, “To citizens generally, the jury trial has given a sense of political 
freedom, a feeling of being a part of government. It offers an assurance of judg¬ 
ment by neighbors who understand the community climate of values, a bulwark 
against the petty tyrannies of headstrong judges, and a means of softening the 
cold letter of the law” (Green, 1955-56:482). 

D. Jury Composition 

The specific rules about jury size, composition, and decision making have under¬ 
gone significant changes in the last 25 years. The norm is for criminal juries to 
have 12 persons representing a cross-section of the community who come to a 
unanimous verdict after being instructed by a judge. In 34 states (Starr and 
McCormick, 1993:39), however, criminal juries can consist of six rather than 
twelve persons. 

A 1970 decision, Williams v. Florida, upheld as constitutional a Florida 
state law that allowed a six-person jury even in serious criminal cases. Some 
states challenged the requirement for a unanimous verdict. For example, the jus¬ 
tices in Apodaca v. Oregon (1972) reasoned that a vote of 10 of 12 jurors was 
an acceptable way to reach in a verdict in a noncapital crime in a state case. 
Even though federal criminal cases still require unanimous verdicts in criminal 
trials, Louisiana, Oklahoma, Oregon, and Texas permit other than unanimous 
verdicts (Starr and McCormick, 1993, p. 40). 

The requirement for a cross-section of the community is a relatively new 
ruling, first appearing in Taylor v. Louisiana (1975). In this decision the Court 
concluded that ‘ ‘the selection of a petit jury from a representative cross section 
of the community is an essential component of the Sixth Amendment right to a 
jury trial” (p. 529). Some states challenged the requirement for a unanimous 
verdict. This decision emphasizes that jurors should represent a “broad section 



Criminal Trial Process 


209 


of the populace” and ensure “diffused impartiality for the administration of jus¬ 
tice” (p. 530). 

E. Jury Selection Procedures 

Complex jury selection procedures are a rather recent innovation. Until the late 
1960s, some courts picked juries by the “keyman” system that designated out¬ 
standing citizens of the community to select jurors. Now, since the implementa¬ 
tion of the Uniform Jury Selection Act (1980), each state uses a jury commission 
to devise a plan for random selection of jurors. 

In 1995, Congress initiated new rules for jury selection, mandating that 
courts choose jurors from among vehicle registration lists, a procedure devised 
to increase the diversity of persons in the jury pools. After the jury venire (pool) 
is chosen, typically 48-60 people, a random sample of that population, is subpoe¬ 
naed for jury service. In some high-profile cases, attorneys hire jury consultants 
to design and evaluate juror profiles. In routine cases, attorneys create juror pro¬ 
files based on standard court surveys that elicit information about a juror’s suit¬ 
ability for service in a particular case. These jurors are brought in small groups 
into the courtroom before the trial judge, attorneys, and defendant(s) to undergo 
a process called voir dire. This process allows judges and attorneys to question 
jurors and to exercise challenges. Jury consultants Starr and McCormick (1993) 
report that the questioning is done in 13 states by judges only, in 18 states by 
attorneys, and in eight states by both judges and attorneys. Judges have consider¬ 
able discretion in deciding the way voir dire is conducted. 

During this selection process, attorneys and judges can exercise cause and 
peremptory challenges resulting in the dismissal of a person from the venire. The 
challenge for cause occurs when a judge or attorney believes the prospective juror 
is biased or incompetent. Peremptory challenges result in jurors being dismissed 
without reasons being given ( Swain v. Alabama, 1965). The number of peremp¬ 
tory challenges allowed depends on the potential punishment. In the majority of 
federal courts, the judge does all of the questioning but attorneys issue most of 
the challenges. 

The use of jury consultants and the use of peremptory challenges both have 
come under attack by critics. Some believe that jury consultants give one side 
of the case an advantage over the other. In the Wall Street Journal, columnist 
S. J. Adler (1989, October 24) questioned the huge sums of money being spent 
on selecting juries, claiming that $200 million are paid to jury consultants yearly 
(p. A 10). Consultants defend their practices by saying that attorneys are obligated 
to present the best possible case for their clients, and the use of consultants is 
one way to enhance the case for a client (Lilley, 1998, January 21). 

Some legal scholars believe that the use of peremptory challenges leads to 
discrimination against persons of color (Fukurai et al., 1993). Others suggest 



210 


Schuetz 


that changing the jury instructions so that they are given immediately prior to 
deliberation would focus jurors on legal issues. Others suggest that eliminating 
the use of jury consultants would create a less tainted process of jury selection 
(Minow, 1997). 

F. Juror Decision-Making 

Once the jurors and alternates are seated at a trial, they are expected to review 
the facts and discern the guilt or innocence of the defendant based on the charges 
and on the judge’s instructions for evaluating the evidence. To resolve the ques¬ 
tion of how jurors make decisions, social scientists Hastie and colleagues (1983) 
concluded that jurors went through the following steps during their deliberations. 
They (a) established “judgment categories based on judges’ instructions,” (b) 
excluded “irrelevant facts,” and (c) applied a story model that condensed and 
connected evidence to characters, actions, and causal sequences (pp. 20-23). Dur¬ 
ing deliberation, jurors voted with the initial majority, few individuals controlled 
the discussion, and jurors selected verdicts according to the ‘ ‘internalized stan¬ 
dard” they held for “proper conduct” (pp. 23-29). 

The value of the jury depends on its ability to make good decisions. Kalven 
and Zeisel (1971) in their landmark study, The American Jury, inquired about 
the quality of jurors’ decisions. Even though their study was conducted in the 
1950s, their results are commonly cited today. They found that juries agreed with 
judges on about 80% of the verdicts (pp. 104-16), that disagreements occurred 
because judges had information not given to jurors (p. 133), that unattractive 
defendants had a converse effect on jurors, and that jurors did understand the 
case and evaluate the evidence (p. 162). 

New research is needed to discern whether contemporary juries react differ¬ 
ently from those in the 1950s. Unfortunately, recent longitudinal research is not 
available. Some contemporary critics claim that the jury system needs to be re¬ 
formed. For example, controversial Georgetown professor, Paul Butler (1996), 
views the jury as discriminatory and recommends jury nullification as the way 
for oppressed groups, including African-Americans, to gain justice. On the other 
hand, recent research (Heurer and Penrod, 1988) shows that jurors are strongly 
affected by the evidence as it is embedded in attorney’s stories of the case and 
not by racial factors. 

Advocates of reform believe that the lack of judge-juror communication is 
the main problem with the jury system. To improve the quality of communication 
between judges and jurors, Smith (1996) recommends that judges simplify their 
instructions, provide commentary on the evidence, and permit evidence, now 
excluded, to be heard by jurors. Myers and Griller (1997) recommend court re¬ 
forms to enhance jurors’ communication by allowing them to discuss evidence 
among themselves prior to deliberations, submit written questions to witnesses, 



Criminal Trial Process 


211 


and address oral questions directly to the judge. A 1993 Arizona law providing 
for all of these recommended court reforms has a 5-year record of success in the 
state’s courts (Myers and Griller, 1997:14). 


II. THE DESIGN OF OPENING STATEMENTS 

The importance of opening statements to the outcome of the trial is the subject 
of much debate. For example studies with mock juries (Spangenberg, 1971) and 
posttrial interviews with real jurors (Jeans, 1975) showed that a large percentage 
make up their minds after opening statements. More recent research (Burke et 
al., 1992) claims that jurors hear all of the evidence before they make decisions 
relevant to the case. Although researchers find it difficult to quantify its effects, 
most agree that the opening statement makes the trial discourse understandable 
to the jury, previews the theories of the case, builds rapport with jurors, and 
provides a cognitive framework to help jurors interpret the information presented 
by witnesses. In this way, the opening statement resembles a prologue to a com¬ 
plex story because it outlines and condenses what is to come in the trial. For this 
reason, attorneys generally present their opening statements after the jury has 
been seated and before the evidence is presented. Although most attorneys give 
opening statements, the defense may waive this privilege (Tanford, 1993:148). 
The content, legal rules, and the recommended structure show how opening state¬ 
ments achieve multiple functions within a criminal trial. 

A. Content 

In a criminal trial both prosecution and defense should tell a believable story. 
The telling of this story begins in opening statements when attorneys introduce 
their case theory by describing story elements: the key characters (defendants) 
and their relationships to other characters (witnesses), the scene where the alleged 
act occurred, and the causal explanations of the alleged action. A persuasive story 
is adapted to the legal issues in the case. Trial process expert Stephen Lubet 
(1993) explains that the stories in opening statements should feature characters 
who have reasons for their actions, credible witnesses who validate facts, and 
attorneys who keep jurors interested and give common-sense explanations of the 
alleged crime (p. 1). 

The function of the opening statement is to condense the theory of the case 
into a believable story. To do this, attorneys frame stories according to a theme 
or slogan that encapsulates the principal issues of their case theory. Experienced 
criminal attorney Gerry Spence (1995) describes the theme as “the ultimate point 
we want to make, a saying, as it were, that symbolizes the very heart of the issue’ ’ 
(p. 77). Trial consultant Ronald J. Matlon (1993) also stresses the importance of 



212 


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themes. He advises attorneys to embed the theme “in the minds of the judge and 
jury in opening statement, emphasize it throughout the questioning of witnesses, 
and stress it once again in summation” (pp. 13-14). Some common themes of 
criminal stories are conclusions that the defendant was framed by the police or 
others, witnesses misidentified the defendant, the defendant acted under duress 
caused by physical or psychological abuse, or the defendant acted irresponsibly 
because of excessive alcohol or drug use. The story presented in opening needs 
to be brief enough to fit within judge-imposed time limits and comprehensive 
enough to cover important evidence. Pennington and Hastie (1993) say that “an 
explanation that leaves a lot of evidence unaccounted for is likely to have a lower 
level or acceptability” to jurors (p. 198). The story of opening statement also 
needs “fidelity,” that is, content that rings true with the experience of the jury 
and is believable to them. 

B. Structure 

The stories of opening statements are typically organized according to a chrono¬ 
logical structure that presents the attorney’s version of the sequence of events 
taking place in an alleged crime. Lubet (1993) warns that attorneys need to select 
a chronological order based on events, subevents, and their fit (p. 355). 

Every story has a connective structure. Topics and chronology offer one 
kind of structure. Attorney Kathryn Snedaker (1986) explains that attorneys de¬ 
velop another structure by “definition, connective evidence, and credibility.” 
Definition of characters, setting, and activity locate the central action of the story. 
Definition is followed by inferences that link evidence so that characters are con¬ 
nected directly to actions. These inferences then connect the elements of the story 
to the theme. In addition to defining and inferring, attorneys emphasize the credi¬ 
bility of the testimony by presenting truthful witnesses who recount the facts 
(P- 19). 

C. Legal Rules 

Presenting a persuasive story in opening statement is common although the law 
prohibits attorneys from arguing in this phase of the trial. The difference between 
argument and persuasion may be difficult for attorneys and judges to define for 
themselves. Alexander Tanford (1993), a prominent legal authority on trial pro¬ 
cess, explains that opening statement must only present one side of the facts and 
that story content is not argument “if a witness could take the stand and make 
the same statement.” However, “if the rules of evidence would prevent such 
testimony, or if no such witness exists, the remarks are argumentative” (p. 149). 

Among the content prohibited are statements asking jurors to decide evi¬ 
dence, to make inferences about evidence, or to interpret facts. Moreover, codes 



Criminal Trial Process 


213 


of professional conduct prohibit attorneys from using emotional appeals that gain 
sympathy for their clients, appealing to the prejudices of jurors, making remarks 
about the character of opposing attorneys, or referring to the attorney’s personal 
experiences and beliefs (Tanford, 1993:149-53). 

Since trials do not permit live reenactment, attorneys must present the story 
of the alleged action in a way that the jurors can envision what happened. Through 
effective word choice and visual imagery, attorneys encourage jurors to recall 
events and remember the evidence. Social scientists Ng and Bradac (1993) em¬ 
phasize that word choice allows speakers (attorneys) “an extraordinary ability 
to evoke a particular structuring of beliefs and emotions” (p. 136). Thus, the 
word choices of an attorney can provide cognitive categories for the jury to use 
as files or categories for interpreting the testimony of witnesses. 

The content of opening statements becomes problematic when attorneys 
forecast testimony that never materializes, discuss the opponent’s case, present 
witnesses in overly dramatic terms, and use legal precepts that do not apply to 
the charges of a particular case. 


III. STRATEGIES OF WITNESS EXAMINATION 

The attorneys use of the testimony of witnesses to elaborate the stories they tell in 
opening statements. Understanding the process of witness examination involves 
knowledge about the rules and content of direct and cross-examination, the use 
of witnesses to introduce evidence, and the problems with eye-witness testimony. 
The testimony evolves from the pretrial investigation of the crime and the evi¬ 
dence-gathering that precedes the litigation. 

An effective direct examination is a crucial part of the criminal trial process. 
The goal of direct examination is to elicit the stories from the witnesses in a way 
that persuades the jurors about the probability of the attorney’s theory of the 
case. The specific purpose of the examination is to get the witnesses to elaborate 
a piece of the whole story that has been forecast in opening statement by introduc¬ 
ing evidence and connecting it to the story of the case advanced by the attorneys 
examining them. Federal Rules of Evidence (1995) identifies three functions for 
direct examination: “ascertain truth,” avoid “needless consumption of time,” 
and “protect witnesses from harassment” (Rule 611). The word “testimony” 
literally means to make a public declaration of the truth, and jurors expect wit¬ 
nesses to testify truthfully to the perceived facts. 

Two common strategies are used by attorneys to elicit facts. One strategy 
is for the attorney to ask many questions that frame the stories of witnesses. 
Another is to ask a few open-ended questions that allow the witnesses to elaborate 
on their observations. The use of these strategies to some extent may be left to 
the discretion of individual attorneys. 



214 


Schuetz 


Most direct examination begins with a statement of the connection of the 
witness to the case, followed by information about the demographic background 
of the witness. Then the attorney asks the witness about the scene and circum¬ 
stances in which the alleged crime occurred, and ends with the inquiries about 
other relevant knowledge or observations that the witness has about the alleged 
crime (Tanford, 1993:247-49). 

The examination of witnesses permits attorneys to introduce nontestimonial 
evidence, such as documents, objects, and demonstrative material, to bolster a 
case. For example, attorneys structure the testimony of witnesses so they can 
introduce documents such as deeds, birth certificates, bank records, and insurance 
agreements. Additionally, witnesses also can testify about physical objects or 
real evidence such as weapons, bomb fragments, clothing from the crime scene, 
fingerprints, shoeprints, and DNA evidence. Attorneys also emphasize the evi¬ 
dence by demonstrative evidence: visual exhibits or physical illustrations of the 
facts. Examples of demonstrative evidence include drawings of the location of 
blood spatters, photographs and slides of evidence of places or settings, and x- 
rays or computer-generated depictions of a crime. Nontestimonial evidence 
serves to bolster and clarify the testimonial evidence. 

Whereas the goal of direct examination is to present the facts, the function 
of cross-examination is raise doubts in the minds of the jurors about the facts. 
To accomplish this goal, attorneys try to elicit testimony favorable to their own 
case and discredit the witnesses of the opposition (Mauet, 1992:226). 

Trial process expert J. N. Lannuzzi (1981) perceives interrogation during 
cross-examination as the reshaping or retelling of the narrative. He describes the 
function of cross-examination as the process of reshaping “adversaries” evi¬ 
dence into pieces, which, by the end of the trial, will fit together with the advo¬ 
cate’s own evidence forming a “mosaic of fact” that supports the case (p. 8). 
Additionally, communication theorists Janice Schuetz and Kathryn Snedaker 
(1988) conclude that attorneys should cross-examine witnesses when they have 
a central role in the case because of their proximity to the crime, can give eyewit¬ 
ness accounts, are victims, or have unique information about the circumstances 
of the crime (p. 109). 

The rules and order of cross-examination differ from direct examination. 
To prevent the cross-examiner from an unlimited and ruthless attack on witnesses, 
criminal trial rules prohibit questions that go beyond the scope of direct examina¬ 
tion and ones that argue, confuse, intimidate, or assume facts not in evidence 
(Lubet, 1993, pp. 53-54). Instead of eliciting stories of the witnesses in a chrono¬ 
logical order, cross-examiners typically refute ideas using a topical order. For 
example, attorneys can directly refute the information elicited during direct exam¬ 
ination by challenging its logic, by questioning the perception and motivation of 
the person testifying, or by raising doubts about the facts as they were recounted. 

Two types of testimony provide key evidence in a criminal trial. One type 
is eyewitness testimony. Psychologists Elizabeth Loftus and Katherine Ketchum 



Criminal Trial Process 


215 


(1981) warn that even though eyewitness testimony is usually persuasive to ju¬ 
rors, the memory of witnesses often is flawed. They explain that “memory does 
not operate like television or videotape’ ’ (p. 76). Instead memory is a constructive 
process in which the witness uses stored information, “prior knowledge and ex¬ 
pectations,” to create memories of criminal events that are presented on the wit¬ 
ness stand (p. 77). Additionally, Loftus and Ketchum (1981) believe memories 
fade over time but that witnesses reconstruct memories by adding facts, images, 
and information they received subsequent to the events they report as witnesses. 

The other type of witness is the expert: a type of witness who can offer 
knowledge and opinions about evidence not based on direct observation. Trial 
rules allow experts to testify about a broad range of conclusions, including the 
causes and consequences of an action, the likelihood of events, and beliefs about 
a wide latitude of actions, including fault, avoidability, and negligency. The Fed¬ 
eral Rules of Evidence (1995) promotes such opinions in cases when the expert’s 
“scientific, technical, or other specialized knowledge will assist the trier of fact 
to understand the evidence or to determine a fact or issue” (Rule 702). To take 
advantage of the latitude of the expert, many trial lawyers engage in the battle 
of the experts, with each expert challenging what the others say. 

The law permits attorneys and their trial consultants to coach witnesses 
about how to present their testimony but not about the content of what they say. 
For example, most trial consultants incorporate the following kinds of advice 
from social science research to improve witnesses’ performances in front of ju¬ 
rors. Consultants recommend that witnesses use direct language since powerful 
speech creates more credibility for testimony than if a witness is hesitant, uses 
tag language, or gives hedges (O’Barr, 1982). Consultants also recommend that 
witnesses dress and act appropriately because professional appearance and de¬ 
meanor increase the persuasiveness of their testimony (Smith and Malandro, 
1985:29-64). Moreover, jurors perceive witnesses who are anxious, withdrawn, 
and uncertain as deceptive (Miller and Burgoon, 1982:180-81). Consultants also 
claim that witnesses are more believable when they make direct eye contact with 
jurors, sit in an upright posture, and express themselves with direct address (San- 
nito and McGovern, 1985:87-156). 

The summations of the prosecution and defense need to solidify the facts 
and evidence presented by their witnesses and, at the same time, refute the testi¬ 
mony provided by opposing counsel. An effective and ethical direct and cross- 
examination paves the way for a strong summation (Underwood, 1997). 


IV. THE DESIGN OF FINAL SUMMATIONS 

The success of closing arguments depends to some extent on the content of the 
trial discourse that has preceded it. The persuasiveness of the closing argument 
relies on the receptivity of the jury to the story of the case as previewed in opening 



216 


Schuetz 


statement and the ability of the witnesses to testify about the relevance of the 
exhibits. 

Even though sources disagree about the importance of the closing argument 
(Mauet, 1992; Schuetz and Snedaker, 1988; Schuetz and Lilley, 1999), most 
agree that this part of the trial provides the dramatic apex to the trial. The persua¬ 
sive presentation of this case theory in summation involves emphasizing evidence 
that supports an attorney’s side of the case, refuting opposing counsel’s evidence, 
demonstrating the connections between the legal issues and the evidence, and 
emphasizing the probability of one’s own story in contrast to that of the opposi¬ 
tion. The narrative content, legal restraints, and persuasive style illuminate the 
design of summations. 

A. Narrative Content 

The attorneys’ summations condense all of the preceding information into an 
understandable story. This culminating story consists of discrete pieces, selected 
by attorneys to become part of a mosaic that they arrange and present during 
summation (Gewirtz, 1996:7). 

Summation consists of two parts: closing arguments and rebuttal. The law 
typically defines the scope and content of summations as “an organized presenta¬ 
tion of your case in its best possible light: a theory of what happened supported 
by evidence and common sense’’ (Tanford, 1993:133). The goal of the attorneys 
is to reiterate and emphasize the theme of the case, organize and emphasize favor¬ 
able evidence, present the position they want the jury to adopt, refute the allega¬ 
tions of the opposition, suggest ways the jury should resolve conflicting testi¬ 
mony, explain the law, and demonstrate how the evidence mandates a verdict 
favorable to their own side of the case (Schuetz and Snedaker, 1988:143). 

B. Legal Restraints 

Although the content of summation features the attorneys presenting practical 
reasoning as a story, legal requirements enter into summation to restrict and limit 
the narrative content. The court has discretion to decide the order in which the 
parties present the closing argument, but typically the prosecution gives the first 
argument, the defense replies, and the prosecution responds in rebuttal. 

The content of summation is confined to the testimony and exhibits intro¬ 
duced in the preceding record of the trial and to legally permitted inferences 
about that evidence. Normally, attorneys are not permitted to appeal directly to 
the jurors’ sympathies or to play on their emotions or prejudices. Attorneys are 
also prohibited from putting themselves in the victim’s or the defendant’s posi¬ 
tion, from asking jurors to base their decisions on broad social issues, and from 
addressing a single juror by name (Tanford, 1993:381). In the rebuttal phase of 



Criminal Trial Process 


217 


the summation, attorneys are expected to emphasize the issues presented in their 
closing and are only permitted to introduce new lines of argument and new exhib¬ 
its that pertain to the issues already presented. 

C. Persuasive Style 

Final summation is not just meticulously demonstrated deductive logic and reiter¬ 
ation of facts. Instead, it consists of reconstructed narratives that condense and 
connect all of the stories told by the witnesses into a unified theme or theory. The 
refutation presents counter narratives to challenge or question stories presented by 
opposing attorneys. For example, in the O. J. Simpson criminal trial, the story 
of the prosecution was that Simpson’s physical abuse of his wife escalated into 
murder. The defense countered by claiming that Simpson was framed by racist 
police. 

Courtroom narratives are persuasive because audiences listen to them with 
a “stock of stories in their minds,” and they use these stock stories to decide 
whether the courtroom narratives ring true with the stories they know and under¬ 
stand (Gewirtz, 1996:8). These stories come from the social knowledge and lived 
experiences of jurors. 

Several features of the narrative contribute to its persuasiveness. The legal 
issues embedded in the narrative tell jurors how they should interpret the law, 
the plot explains why a story is probable, and the storyteller’s attributions of 
credibility to the different actors identify whom jurors should believe. 

Issues arise out of the charges in the case. In a murder case, the issues 
depend on the laws of the state. For example, in California murder is defined 
(California Penal Code: Section 187, 1994) as “every person who unlawfully 
kills a human being with malice aforethought is guilty of the crime of murder.” 
So the issues to be decided are: Was a human being killed? Was the killing 
unlawful? Was the killing done with malice of aforethought, that is, willful, delib¬ 
erate, and premeditated action? In all criminal cases, the main issues evolve out 
of the legal definitions. 

Credibility factors affect the ways in which jurors interpret evidence and 
how they view the issues. Theories of argument credibility help to explain both 
the content and the reception of summation stories by the jury. Credibility refers 
to ‘ ‘the judgments made by a perceiver concerning the believability of a commu¬ 
nicator” (O’Keefe, 1990:130-31). In most criminal trials, jurors attribute credi¬ 
bility to the judge, the attorneys, the accused, and the witnesses. For example, 
in the O. J. Simpson criminal trial, jurors based their decision primarily on the 
lack of the prosecution witnesses’ credibility, but in the civil trial jurors rendered 
their decision primarily on the lack of Simpson’s credibility (Burnett, 1999). 
Since credibility is relational, jurors attribute credibility in different ways. In fact, 
the primary goals of the attorneys are to establish their personal credibility with 



218 


Schuetz 


jurors, to build the credibility of their own witnesses, and to impeach the credibil¬ 
ity of the witnesses who present the most damaging testimony against them. 

One strategy attorneys use to create a believable story is by making infer¬ 
ences about motive and opportunity based on the available evidence. Inferences 
allow attorneys to appeal indirectly to jurors’ emotions and experiences by using 
imagery and vivid language. For example, Prosecutor Christopher Darden’s sum¬ 
mation in the O. J. Simpson criminal case used this kind of inference. He told 
the jury: “This kind of relationship between this man and Nicole ... It is like 
the time bomb. ... You see that fuse is lit in 1989. ... It is burning October 
25 of 1993, and Nicole doesn’t know it at the time, [but] she knows [later] he 
is going to kill her. . . . The fuse is becoming shorter. . . . There is going to be 
an explosion” (Schuetz and Lilley, 1999). In this way, he inferred that incidents 
of domestic violence lead to murder. In the civil case, Plaintiff’s Attorney Daniel 
Petrocelli also used potent imagery to make inferences in his story of the crime. 
He told the jury, “O. J. Simpson was a man in a state of total rage, armed with 
a 6-inch knife. He’s a powerful man, over six feet, 200 pounds, played one of 
the most violent sports in American sports. . . . And here he is with a knife, 
enraged and out of control” (Schuetz and Lilley, 1999). Petrocelli inferred that 
an enraged man with strong physical abilities was capable of inflicting massive 
wounds on his victims. Both summations used this emotional imagery to infer 
that Simpson murdered Nicole Brown. In this way, language adds persuasive 
potency to the stories attorneys present to juries. Another strategy used by civil 
and criminal attorneys is to amplify arguments through * ‘abstract patterns of rea¬ 
soning” such as analogy, parallel case, and generalization (Jasinski, 1990:60). 

Federal Prosecutor Larry Mackey used similar strategies in the closing ar¬ 
gument phase of his summation in the Timothy McVeigh trial (Oklahoma City 
Bombing Transcript, 1997, May 29). The persuasive force of analogy “depends 
on securing audience participation in the unfolding form,” engaging the audience 
in an imaginary experience, and then legitimating the analogy as part of the argu¬ 
ment (Jasinski, 1990:60). For example, Mackey told jurors that the case against 
McVeigh was a huge “wall” of evidence built “brick by brick.” Each brick 
represented the testimony of one of the government’s witnesses. The wall was 
the barrier jurors had to overcome if they were to find reasonable doubt with 
the prosecution’s case. This example engages the audience and legitimates the 
argument that McVeigh should be convicted. 

Attorneys also persuade with parallel case. This type of inference is based 
on “statements about important values and beliefs adhered to by members of a 
society” (Jasinski, 1990:60). Mackey claimed that the Oklahoma City bombing 
was an act of terrorism parallel to the revolutionary action against the government 
described in McVeigh’s favorite book, The Turner Diaries. He argued that 
McVeigh was like the characters in the book because he despised the government 
and wanted to kill its representatives. This inference connected Mackey’s argu- 



Criminal Trial Process 


219 


ments with the jurors’ knowledge of antigovemment groups and validated their 
common-sense understanding of what motivates terrorism against government 
workers. 

Finally, generalizations connect the narrative the attorneys present with 
stories familiar to jurors. Attorneys connected their facts and evidence with a 
theme or story so that is more probable than that of the opposition. Mackey’s 
narrative generalized that McVeigh was “motivated by hatred of the govern¬ 
ment” and in “a rage over the events of Waco.” This generalization fit with the 
trial evidence about his ideology, group affiliations, and the content of letters he 
wrote after observing first hand the siege of the Branch Davidians at Waco. 

Story elements are connected by inferences that bring together evidence 
and imagery to create the theme of the trial story. Thus, summations combine 
narrative content, refutation, and inferences about the evidence into a dramatic 
condensation of the entire trial. 


V. CONCLUSION 

From the media reporter’s first tip on a crime until the verdict, the trial is under 
the scrutiny of the media, the jurors deciding the case, the judge hearing the case, 
and the public reading and viewing the trial. The underlying legal and communi¬ 
cation principles of media coverage, jury selection and deliberation, opening 
statement, witness examination, and summation should assist in the reader’s un¬ 
derstanding of some of the substantive procedures and processes of criminal 
trials. 


REFERENCES 

Adler, S. J. (1989). ‘Litigation science: Consultants dope out the mysteries of jurors for 
clients being sued,’ Wall Street Journal : A10, October 24. 

Aly, B. (1969). The gallows speech: A lost genre, Southern Speech J. 35: 204-213. 

Apodaca v. Oregon (1972). 32 L.Ed. 184. 

Burke. W. L., Poulson, R., and Brondino, M. J. (1992). Fact and fiction: The effect of 
opening statement, J. Contemp. Law 18: 195-210. 

Burnett, A. (199). Jury decision-making processes in the O. J. Simpson criminal and civil 
trials, in The O. J. Simpson Trials, Media, Rhetoric, and the Law, J. Schuetz and 
L. S. Lilley, eds.. Southern Illinois University Press, Carbondale, IL. 

Caplan, L. (1996). The failure and promise of legal journalism, in Postmortem: The 
O. J. Simpson Case, J. Abramson, ed., Harper Collins, New York, pp. 188-210. 

Denniston, L. W. (1980). The Reporter and the Law: Techniques of Covering the Courts, 
Hastings House, Hastings, New York. 

Federal Rules of Evidence (1995). Rules 611, 702. 



220 


Schuetz 


Fukurai, H., Butler, E. W., and Krooth, R. (1993). Race and the Jury: Racial Disenfran¬ 
chisement and the Search for Justice, Plenum Press, New York. 

Gewirtz, P. (1996). Narrative and rhetoric in law, in Law’s Stories, P. Brooks and P. 
Gewirtz, eds., Yale University Press, New Haven, CT, pp. 2-13. 

Graham, F. (1998). Doing justice with cameras in the courts, Media Studies. J. 12: 32- 
37. 

Green, L. (1955-56). Jury trials and Mr. Justice Black, Yale Law J., 65: 482-99. 

Hastie, R„ Penrod, S. D., and Pennington, N. (1983). Inside the Jury, Harvard University 
Press, Cambridge, MA. 

Heurer, L, and Penrod, S. D. (1988). Increasing jurors’ participation in trials: A field 
experiment with jury notetaking and question asking, Law Human Behav. 12: 232- 
262. 

Heurer, L., and Penrod, S. D. (1990). Some suggestions for critical appraisal of a more 
active jury. Northwest. Univ. Law Rev. 85: 226-339. 

Irvin v. Dowd (1959). 360 U.S. 310. 

Jasinski, J. (1990). An explanation of form and force in rhetoric and argumentation, in 
Argumentation Theoiy and the Rhetoric of Assent, D. C. Williams and M. D. Hazen, 
eds.. University of Alabama Press, Tuscaloosa. AL, pp. 53-68. 

Jeans, J. W. (1975). Trial Advocacy, West Publishing Co., St. Paul, MN. 

Kalven, H., and Zeisel, H. (1971). The American Jury, The University of Chicago Press, 
Chicago, IL. 

Lannuzzi, J. N. (1981). Cross-Examination: The Mosaic Art, Prentice Hall, Englewood 
Cliffs, NJ. 

Lilley, L. S. (1998, January). Interview transcription of the author, p. 4. 

Lofton, J. (1966). Justice and the Press, Beacon Press, Boston, MA. 

Loftus, E., and Ketchum, K. (1991). Witness for the Defense, St. Martin’s Press, New 
York. 

Lotz, R. E. (1991). Crime and the American Press, Praeger Press, Westport, CT. 

Lubet, S. (1993). Modern Trial Advocacy: Analysis and Practice, National Institute for 
Trial Advocacy, Chicago, IL. 

Matlon, R. J. (1993). Opening Statements/Closing Arguments, Stuart Allen Books. San 
Anselmo, CA. 

Mauet, T. A. (1992), Fundamentals of Trial Practice. Little, Brown and Company, Boston, 
MA. 

Miller, G. R„ and Burgoon, J. K. (1982). Factors affecting assessments of witness credibil¬ 
ity, in The Psychology of the Courtroom, N. L. Kerr and R. M. Bray, eds.. Academic 
Press, New York. 

Minow, M. (1997). Not Only for Myself: Identity, Politics and the Law, The New Press, 
New York. 

Myers, R. D., and Griller, G. M. (1997). Educating jurors means better trials: Jury reform 
in Arizona, Judges’ J. 36: 13-17. 

Nebr. Press Assoc, v. Stuart (1976). 427 U.S. 539. 

Ng, S. H., and Bradac, J. J. (1993). Power in Language: Verbal Communication and Social 
Influence. Sage Publications, Newbury Park, CA. 

O'Barr, W. M. (1982). Linguistic Evidence: Language, Power, and Strategy in the Court¬ 
room, Academic Press, New York. 



Criminal Trial Process 


221 


O’Keefe, D. J. (1990). Persuasion: Theory and Research, Sage Publications, Newbury 
Park, CA. 

Oklahoma City Bombing Transcript (1997, May 29). www.courttv.com, pp. 1-45. 

Pennington, N., and Hastie, R. (1993). The story model of juror decision making, in Inside 
the Juror: The Psychology of Juror Decision Making, R. Hastie ed., Cambridge 
University Press, Cambridge, UK, pp. 192-218. 

Richmond Newspaper Inc. v. Virginia (1980). 448 U.S. 555. 

Sannito, T., and McGovern, P. J. (1985). Courtroom Psychology for Trial Lawyers, John 
Wiley and Sons, New York. 

Schuetz, J. (1994). The Logic of Women on Trial, Southern Illinois University Press, 
Carbondale, IL. 

Schuetz, J., and Lilley, L. S. (1999). The O. J. Simpson Trials: Media, Rhetoric, and the 
Law, Southern Illinois University Press, Carbondale, IL. 

Schuetz, J., and Snedaker, K. H. (1988). Communication and Litigation: Case Studies of 
Famous Trials, Southern Illinois University Press, Carbondale, IL. 

Sheppard v. Maxwell (1966). 384 U.S. 333. 

Smith, D. G. (1996). The historical and constitutional contexts of jury reform. Hofstra 
Law Rev. 25: 377-506. 

Smith, L. J., and Malandro, L. A. (1985). Courtroom Communication Strategies, Kluwer 
Publishers, New York. 

Snedaker, K. H. (1986). Storytelling in opening statements: Framing the argumentation 
of the trial. Am. J. Trial Advocacy 10: 15-46. 

Spangenberg, C. (1977). Basic values and techniques of persuasion. Litigation 3: 13. 

Spence, G. (1995). Let me tell you a story. Trial 31: 72-79. 

Staff Report on Free Press-Fair Trial (1976). U.S. Congress Senate Committee on the 
Judiciary, 94th Congress, 2d. Session, p. 8. 

Starr, H. V., and McCormick, M. (1993). Jury Selection: An Attorney’s Guide to Jury 
Law and Methods, 2nd ed.. Little, Brown & Company, Boston, MA. 

Swain v. Alabama (1965). 380 U.S. 202. 

Tanford, J. A. (1993). The Trial Process: Law, Tadics and Ethics, 2nd ed. The Miche 
Company, Charlottesville, VA. 

Taylor v. Louisiana (1975). 419 U.S. 529. 

Underwood, R. H. (1997). The limits of cross-examination. Am. J. Trial Advocacy 21: 
113-128. 

Uniform Jury Selection Act (1980). 13 U.L.A. 509. 

Williams v. Florida (1970). 26 L. Ed. 2nd 446. 



This Page I nbentionally Left Blank 



13 

Evolution of Court Management 


Kevin Lee Derr 

Senate of Pennsylvania, Harrisburg, Pennsylvania 


I. INTRODUCTION 

In 1967, the President’s Commission on Law Enforcement and Administration 
of Justice called the criminal court “the central, crucial institution in the criminal 
justice system.” Like other political institutions, the courts have evolved over 
time. This evolution has defined the role that the courts play in the American 
system of criminal justice, and it has simultaneously made the job of court admin¬ 
istrator unique in many respects. The role of a court manager in the American 
system of criminal justice cannot be understood without a consideration of the 
evolution of the courts as organizations and the corresponding changes in the 
responsibilities of those who manage them. 

This chapter looks at how the courts, their personnel, and their management 
have changed historically. Courts are examined from a general perspective (i.e., 
not one limited to criminal justice) because the judicial branch must simulta¬ 
neously deal with criminal and other subject matters. Since this is generally the 
case, overall evolutionary trends are significant both to the management of crimi¬ 
nal courts and to court administration on the whole. Recent trends in court admin¬ 
istration are also examined. This review of history, coupled with a discussion of 
current trends, can also serve to provide insight into judicial administration in 
the next century. 

The evolutionary phenomena that have influenced court administration over 
the last hundred years or more have come primarily in three major forms: legal, 
structural, and professional. The first form pertains to the legal subject matter 
handled by the judiciary. Although not often directly coupled to administrative 
practices, changes in the types of cases heard by the judiciary are of vital conse- 


223 



224 


Derr 


quence to any discourse on court management. For example, over time, the courts 
have become more willing to address subjects not previously considered appro¬ 
priate for judicial review. In other instances, the courts have dealt less with other 
subjects. Court management has had to adapt accordingly. 

The second evolutionary trend is composed of changes in the structural 
forms of the courts. Generally speaking, over the last century, the judiciary has 
moved from isolated or loosely connected fiefdoms to unified “systems.” That 
this major structural change would have an impact on management is obvious. 
The third evolutionary development comes in the form of improvements to the 
field of court management itself. Court administration has undergone significant 
professionalization over the last few decades. All of these trends have combined 
to define the administration of this vital component of the criminal justice system, 
and none stands completely independent of the others in that regard. 

Before exploring these evolutionary trends in more detail, it is important 
to discuss briefly the backdrop against which they have taken place. Neely notes 
that the unique structure of the court system is the result of the interplay of 
historical accident and conscious design: 

Courts are absolutely unlike any other structure in government, and because 
of their structural features, courts are the institution of government least 
likely to be manipulated for a selfish purpose by individuals in them or by 
the institution as a whole. . . . Historical accident provided an institution 
characterized by decentralized decision making with few administrative hier¬ 
archical features, thus minimizing the rewards to bureaucratic empire build¬ 
ing. Conscious molding has given us an institution more circumscribed by 
formal procedures, codes of conduct, and constant public scrutiny than any 
other power force in government. (1981, 190-91) [emphasis in original.] 

The most obvious distinction is that the courts are professional bureaucra¬ 
cies, that is to say, organizations dominated by one particular profession. The 
implications of this are that the members of the organization often follow stan¬ 
dards established outside of the organization. As such, there are ‘ ‘dual lines of 
authority” governing organizational members (Saari, 1982:34). Furthermore, the 
decisionmaking processes and the organizational structure of the courts are de¬ 
signed to complement and support the profession, as opposed to the administra¬ 
tion of the organization. In the case of the judiciary, the profession that dominates 
is the legal profession. Members of the legal profession must adhere to standards 
of professional conduct established by the Bar, a self-governing association. 

Another distinctive characteristic is the separation of production processes 
from administrative processes. The courts exist to produce justice, or at the very 
least to resolve disputes. Yet, when a judge fails to do justice, there is little in 
the way of administrative control over the situation. (Of course, situations of 
corruption or criminal wrongdoing are exceptions to this.) Appeals courts control 



Evolution of Court Management 


225 


trial judges’ decision making by reviewing lower court decisions, however, they 
do not “exercise any administrative control the way higher authorities in the 
executive branch exert administrative control over lower-echelon decision mak¬ 
ers” (Neely, 1981:192). Indeed, the decision making process itself is markedly 
structured. ‘ ‘The judiciary is the only branch of government which absolutely 
requires that the person making a decision do his own work: the decision maker 
must personally sit on the bench, hear oral arguments, listen to the testimony of 
witnesses, make his own findings of fact and law, and ultimately sign his own 
name to the order rendering a decision.” (Neely, 1981:201). 

Neely describes the conflict between administration and judicial rulemak¬ 
ing as follows: 

Except in a few states with unified court structures, the budgets, personnel 
allocations, and physical accommodations of the [appellate and trial] courts 
are entirely separate, and each judge and court is individually funded. Lower 
courts are brought into compliance with developing case law by appellate 
opinions reversing lower court decisions. . . . However, any higher court is 
always dependent upon the good will of the lower courts for the effective 
execution of the policy which it makes. In the judiciary, there is absolutely 
no penalty for making wrong decisions and no sanction against creativity. 

You cannot punish a judge for a wrong decision by taking away his office 
budget or his travel allowance. Since an innovative judge has nothing to fear 
in the form of “administrative” retribution, he can compel appellate courts 
to address difficult issues by refusing to follow precedent . . . (p. 192). 

Many of the goals of the courts are unique as well. Like other public agen¬ 
cies, courts must do their work efficiently and effectively. Efficiency can be 
defined as doing the most with the resources available (Downs and Larkey, 
1986:6). Court administrators, like other public administrators, are expected to 
act efficiently, and both can use many of the same strategies to do so. Effec¬ 
tiveness, on the other hand, has been defined as the ability of an organization to 
attain its goals (Downs and Larkey, 1986:7). As such, “effectiveness” in the 
context of the courts can be more problematic, given the uniqueness of the 
primary goal of the judicial branch. 

Courts exist to achieve and dispense “justice.” Not only is this an uncom¬ 
mon organizational goal, but the notion of justice is a “wicked problem,” in that 
reasonable people can disagree on its meaning and it is hard to determine whether 
it has been achieved (Rittel and Webber, 1973). Not only is the term imprecise, 
it may conflict with the objectives of the other members of the criminal justice 
system. For example, both prosecutors and correctional facilities have the goal 
of removing miscreants from society. The courts, however, must balance the 
interests of the state against the interests and constitutional rights of the accused. 
Many times, that balance goes against the rapid dispatch of criminal defendants 
to prison. 



226 


Derr 


The distinctiveness of the courts adds complexity to the challenges that 
court administrators face. The history of a highly decentralized structure, varia¬ 
tions in court systems among the states, and the uniqueness of the work of the 
courts also hinders the ability to paint a broad-brush picture of the role of court 
managers in the criminal justice system. David J. Saari notes that “the extreme 
complexity of the judicial branch makes it exceedingly difficult to generalize 
about the subject, and comparisons among court systems at a gross level are 
almost useless.” (1982:5). 


II. LEGAL SUBJECT MATTER: THE EVOLVING NATURE 
OF COURT WORKLOAD 

In trial and appellate courts, the workload with respect to both type and volume 
of cases has changed over time, thereby forcing the scope of court management 
to change accordingly. Criminal cases in colonial times “typically made up no 
more than 10% of the docket of the general trial courts.” (Rossman, 1990:526). 
That proportion has changed. For example, the percentage in Pennsylvania is 
now roughly double that historical figure. According to a report issued by the 
Administrative Office of the Pennsylvania Courts, at the end of 1995 there were 
53,072 criminal cases pending, 41,566 civil cases pending, and approximately 
170,000 family law matters pending (AOPC, 1996). 

The research literature on court workload patterns has generally concerned 
itself with the appellate courts, particularly those in the federal system. However, 
that research demonstrates the change in volume and nature that has occurred in 
all courts. As to volume, caseloads of appellate courts have grown dramatically. 
In one study, for example, the workload of three federal circuits went from 866 
cases in 1895 to 11,662 in 1970 (Baum et al., 1982). Significantly, the caseload 
tripled from 1960 to 1970 (Baum et al., 1982). This is partially due to the fact 
that the rate of appeal has also increased. In 1951, the ratio of appeal from 
district court decisions was 1:7, in 1970 it was slightly more than 50 (Baum 
et al., 1982:295). 

As noted, the type of case customarily heard by appellate courts has simi¬ 
larly undergone transformation. This was due, in part, to the fact that there was 
no right of appellate review in criminal cases for the first 100 years of the federal 
courts. State appellate review of criminal trials was likewise limited (Rossman. 
1990). There has, over time, been a significant swelling in the criminal portion 
of appellate court caseloads. That increase was most notable in the 1960s (Baum 
et al., 1982). Davis and Songer (1995) found a 507% increase in criminal caseload 
over all federal appellate circuits between 1961 and 1979, with an increase of 
54% between 1979 and 1984. Over that time period, the largest change (299%) 
occurred in bankruptcy cases (Davis and Songer, 1995). The change in criminal 
caseload reflects both an increased crime rate in society at large and an increase 



Evolution of Court Management 


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in the rate of appeals from trial court decisions. The later shift towards bankruptcy 
and other civil cases in the later period likewise reflects societal influences. 

Baum et al. (1982) found that in all three appellate circuits surveyed, public 
law cases now constitute the largest percentage of caseload, despite the above- 
mentioned rise in criminal cases. This is consistent with the view of many that 
the judiciary has now asserted itself as an “elite” actively involved in policymak¬ 
ing and policy administration. Rourke points to what he calls “the constantly 
evolving relationship between the courts and administrative agencies in this cen¬ 
tury” (1984:201). 

In that regard, Rourke (1984) describes three evolutionary periods. The 
first period occurred prior to the 1930s, during which courts were suspicious of 
bureaucracy and acted to protect what they viewed as their domain. In the next 
period, which began during the New Deal, courts began to recognize that adminis¬ 
trators might possess expertise of value to societal problem solving. The third 
period, which we are now in, possesses a judiciary that is willing to challenge 
administrative decisions (Rourke, 1984). 

At the same time that certain types of cases have become more prevalent, 
other cases, such as maritime contract claims, have declined (Baum et al., 1982). 
These changes in subject matter can present new challenges to court managers. 
For example, each type of case may have unique procedural requirements, re¬ 
sulting in an alteration of the methods that must be employed to process the 
cases. Indeed, the impact of the changing caseload can be seen in the development 
of management processes for the appellate courts. 

Appellate management was guided in earlier times by the need for institu¬ 
tional uniformity, as opposed to the more modem concerns for individual liberties 
(Rossman, 1990). Rossman notes: “Although the modem rationale for review 
in criminal cases places great emphasis on the need to ensure that each individual 
defendant receives a fair trial, this atomistic view of the process played only a 
minor role in eighteenth century judicial thought.” (1990:543). The major justi¬ 
fication for appellate review of criminal cases during that time period rested on 
institutional rather than individual concerns (Rossman, 1990). Those institutional 
concerns were uniformity in the judicial function and the maintenance of the 
power of the courts over the judiciary’s role in the criminal justice process (Ross¬ 
man, 1990). The increase in concern over individual liberties has carried with it 
new management challenges. Procedures must be fair as well as efficient and are 
now subject to increased constitutional scrutiny. 


III. STRUCTURAL EVOLUTION 
A. Unification 

The shift from decentralized courts towards unified court systems has been the 
major administrative reform of the modem era. This type of reform has been 



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consistently urged since the turn of the century. In his speech to the American Bar 
Association, Roscoe Pound (1906) noted that “our system of justice is archaic 
in three respects: (1) in its multiplicity of courts, (2) in preserving concurrent 
jurisdictions, (3) in the waste of judicial power which it involves.” In 1973, the 
National Advisory Commission on Criminal Justice Standards and Goals reiter¬ 
ated Pound’s concerns and argued that “efficient judicial administration requires 
the creation of a centralized court administration within each jurisdiction.” 

This “unification” can, and has, come in two forms. In one form, the entire 
court system is placed under the authority of the highest court and/or an adminis¬ 
trative office or judicial council. The other form merely refers to the combination 
of functions, such as criminal and civil cases, into a single court (Gazell, 1978). 

According to Gazell, the first form has four major components. First, the 
highest court is granted power to make all rules of practice and procedure 
(1978:6). This power may lie in the Chief Justice or may be delegated to an 
administrative office of the courts. Second, the Chief Justice alone, or in conjunc¬ 
tion with the administrative office of the courts, appoints the chief judges and 
administrators at the appellate and trial court levels. This practice has come under 
criticism from those who view the judicial council model as the best form of 
court administration. In that model, a council composed of legislators, judges, 
and laypersons provides for increased levels of participation, as opposed to re¬ 
mote, top-down direction (Gazell, 1978:7). 

The third component of overall court unification consists of discretion being 
vested in the highest state court (or its agents) to appoint and assign court person¬ 
nel, rather than the traditional system, which consisted of personnel decisions 
being made at the local level. This applies equally to judges and other court 
employees, as well as to both appellate and trial courts. 

The last component of overall court unification, at least according to Gazell. 
is statewide funding (1978:7). This involves the preparation and submission of 
a court budget to the legislature. While this is regarded as a sine qua non of the 
unification concept by some, others recognize that money cannot substitute for 
management ability, which few justices regard as an essential function of their 
role. Funding as a structural reform is discussed in more detail below. 

As previously defined, the other type of unification consists of the joining 
of courts within a certain level of jurisdiction. This type of unification can be 
achieved through a variety of methods (Gazell, 1978). It can be composed of a 
joining of all trial courts within a political jurisdiction such as a city or other 
municipality. It can also consist of a combining of functions within one court 
body. Historically, many trial level functions were performed by different courts. 
For example, courts such as orphans’ courts would perform trial-level functions 
pertaining to juveniles and adoptions, while courts of domestic relations would 
handle family matters. These functions have been joined by many states into one 
general trial-level court, which often then is organized into divisions to handle 
these various types of matters. 



Evolution of Court Management 


229 


While frequently this type of unification is done at the trial-court level, 
many states have taken similar steps to reform the minor judiciary. Judicial of¬ 
fices, such as Justices of the Peace, have been combined by some states into a 
single level of courts of limited jurisdiction. Other states have taken action to 
eliminate many of the traditional fee offices or to limit their powers (Gazell, 
1978). 

Many unification plans simultaneously provide for a statewide administra¬ 
tor, as well as increased management responsibilities at the local courthouse level, 
such as expanded supervision of personnel. The result is often a single administra¬ 
tor with increased responsibilities. Correspondingly, unification has presented nu¬ 
merous management challenges by increasing the complexity of the system to 
be managed, and by forcing an evolution of the administrator's role. 


B. Statewide Funding 

The movement towards the state as the sole source of court financing (another 
major structural reform) is often thought to go hand in hand with unification. 
Changing funding sources from the traditionally local to state, or some mixture 
thereof, involves two basic issues, both of which have an impact on management. 
Those issues are the extent of state funding, and how the state should provide 
the funding. 

The question of extent can be viewed two ways. The first pertains to how 
much of the overall court budget the state should provide. Because the mix of 
state and local responsibilities is so varied, clear classification is difficult. How¬ 
ever, Tobin (1996) places states in one of five general categories: 

1. Those that are 90-100% state-financed: Alaska, Connecticut, Hawaii, 
Kentucky, Maine, Massachusetts, New Hampshire, Rhode Island, and 
Vermont (9) 

2. Substantially state-financed but some responsibilities left to local gov¬ 
ernment, most commonly all facilities: Alabama, Colorado, Delaware, 
Iowa, Maryland, New Jersey, New Mexico, New York, North Carolina, 
North Dakota, Oregon, South Dakota, and Utah (13) 

3. Most financing comes from state but local governments still provide 
a significant amount of financing: Kansas, Missouri, Nebraska, Okla¬ 
homa, Virginia, West Virginia, and Wyoming (7) 

4. Locally financed but with substantial admixture of state financing: Ari¬ 
zona, California, Illinois, Louisiana, Michigan, Minnesota, Ohio, Penn¬ 
sylvania, and Wisconsin (9) 

5. Substantial local funding with few exceptions, such as judicial salaries 
and benefits: Arkansas, Florida, Georgia, Idaho, Indiana, Mississippi, 
Montana, Nevada, South Carolina, Tennessee, Texas, and Washington 
( 12 ). 



230 


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The second part of the extent issue involves the determination of the func¬ 
tions over which the state should assume responsibility. This component of the 
state financing question raises the issue of the “scope” of funding. The functions 
and personnel that are considered “court-related” vary from state to state. Func¬ 
tions considered judicial in one jurisdiction may be performed by noncourt agen¬ 
cies in another, rendering gross comparisons among state-financed court systems 
almost impossible. Thus, each state’s legislative and budgetary processes shape 
the various organizational and functional definitions of the court system. 

According to the National Center for State Courts, scope can be viewed in 
one of three ways: (a) by court level; (b) by expenditure objective; or (c) by 
function (Tobin, 1996). The scope of state financing may be discussed as expendi¬ 
ture objects. Kansas and Missouri, for example, assumed personnel costs but left 
nonpersonnel costs as a local responsibility. State financing may focus on an 
aspect of the trial court system, for example, unifying limited jurisdiction trial 
courts (e.g., Maryland, Nebraska, Utah, Virginia, and West Virginia). Municipal 
courts are sometimes a major problem in this scenario. These courts are mon¬ 
eymakers, and municipalities fight to retain control of them (Tobin, 1996). 

The issues surrounding funding of courts based on function provides an 
insight to in the complexity of court operations, and the types of areas that may 
come under the court administrator’s purview. According to Derr (1996), func¬ 
tional areas where state financing may or may not apply in other states include; 

Adult and juvenile probation 
Juvenile detention 
Child care 

Public Defender’s office 

Budget overlap with prosecutors 

Child support enforcement 

Psychiatric and medical services per court order 

Noncourt functions of clerks 

Sheriff services 

Law libraries 

As to the question of the methods of financing, Derr (1996) notes that states 
have funded trial courts in a variety of ways. An appropriation to a state court 
agency to defray general operating expenses of trial courts or some specific ex¬ 
pense (e.g., judicial salaries) is the principal means of funding trial courts, espe¬ 
cially those that are primarily state financed. Some states make discretionary 
grants to local governments to defray court costs. In other states, block grants 
are issued to counties or cities based on a formula, usually a set amount per 
judge. Several state-run programs operate to reimburse county court costs. More 
uncommonly, there are some in which counties reimburse states. Some states 



Evolution of Court Management 


231 


will appropriate money to a special fund, such as the judicial retirement fund, 
and some rely heavily on user fees to finance trial courts. 

The nature of actual transitions to state funding has varied greatly by state. 
Like the determination as to the degree and the scope of funding, the determina¬ 
tion of the funding structure is a policy choice. No one choice stands out as the 
only correct alternative. Although the notion of statewide funding is consistent 
with the centralization movement, it has not been demonstrated that efforts to 
unify the courts necessarily require statewide funding. In any event, over the last 
50 years, court administrators have had to mold fiscal management to meet both 
combinations of funding streams, and transitions from one funding structure to 
another. 


IV. EVOLUTION OF COURT MANAGEMENT 
AS A PROFESSION 

A. The Changing Face of Courts and Court Employees 

In the early days of the United States, the states followed English common law 
practices in setting up their courts (Rossman, 1990). While the same judges pre¬ 
sided over criminal and civil trials, the title of the court and the procedures used 
varied depending on the type of case (Rossman, 1990). Many judicial functions 
were performed by local magistrates or Justices of the Peace. Some courts met 
only at selected times each year. Because many judges traveled the circuit in 
order to conduct their duties, structure, in the sense of the courts’ physical plant, 
was not firmly established. In all, the colonies ‘ ‘had greatly simplified the staff 
of the courts” and often a clerk and his deputies were remunerated from fees 
paid by litigants (Surrency, 1987:371). 

The Judiciary Act of 1789 created the positions of clerk and marshal in 
the federal court system. At the time these offices were created, there were no 
provisions for supervision, which perhaps reflected the legislature’s presumption 
that each federal judge would be responsible for the supervision of the officials 
serving under him (Surrency, 1987:372). Confusion existed over this as well as 
over issues such as support staff, compensation, and job duties, until the middle 
of this century. 

The primary duty of the clerk in both federal ancl state courts is the mainte¬ 
nance of official records. Generally, when a case is first filed, it is entered on a 
“docket” on which is recorded the stages through which it passes as it proceeds 
through the system to a final resolution, or is dismissed. A number is assigned 
to the case. A case file is opened, containing all documents filed by the litigants 
as well as the court’s formal orders. Such files are opened to public inspection 
unless sealed by the court. Maintaining records is ministerial in nature, while 
sealing a court order is a judicial action of the court (Surrency, 1987:375). As 



232 


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such, clerks perform both administrative and judicial functions at least to a de¬ 
gree. 

Although historically clerks were never formally designated as manage¬ 
ment officers, the highly decentralized nature of the courts caused clerks to have 
extensive administrative power in many instances (Lawson and Howard, 1991). 
Clerks within the same court systems were not accountable to other judges or 
clerks within the same system. This fragmentation in management control often 
caused delay, unnecessary duplication of effort, and other inefficient behaviors. 

The federal situation began to stabilize beginning in the 1940s when the 
Administrative Office of the Courts was created. Pursuant to the Judicial Code 
of 1948, one clerk became responsible for all offices within a district. The author¬ 
ity to hire support staff for the clerk went from the control of the judge, to the 
control of the Attorney General, and then, in 1948, to the Director of the Adminis¬ 
trative Office of the Courts. The Director was given the duty to supervise “all 
administrative matters relating to the offices of clerk and other clerical and admin¬ 
istrative personnel of the courts’’ (Surrency, 1987:378). Financial management 
likewise went from Congress directly, through the Department of Interior, and 
finally settled with the Department of Justice (Surrency, 1987). 

The states began to recognize the need for a manager during, or slightly 
previous to, the same time period. In Boston, the position of executive clerk was 
created in 1924. This individual was given many responsibilities similar to those 
performed by court managers today (Lawson and Howard, 1991). In Connecticut, 
an executive secretary position responsible for auditing expenses was created in 
1937 (Lawson and Howard, 1991). The deliberate expansion of administrative 
authority into a single, centralized professional court executive would be slow 
and would not begin until the landmark New Jersey reforms in 1947. In that year. 
New Jersey became the first state to establish a unified court system. 

Other support staff positions necessary to court administration also evolved 
slowly. From the beginning, a need existed for a person to manage the operation 
of the courtroom itself. One of the first actions taken by the United States Su¬ 
preme Court even before appointing a clerk was to appoint Richard Wenman 
as “Crier of this Court” (Surrency, 1987:388). The job description and line of 
supervisory oversight were unclear, in much the same manner as described above 
regarding the clerk position. Sometimes criers were appointed by judges; at other 
times, the marshal would designate someone to act as a bailiff and perform essen¬ 
tially the same functions. Initially criers were also paid from fees collected. How¬ 
ever, Congress attempted to centralize fiscal administration and payment for cri¬ 
ers became subject to appropriation. Because of this, many courts were without 
criers during the Great Depression. The position was not made a permanent fix¬ 
ture in the courts until 1944 (Surrency, 1987). 

Federal judges had no formal secretarial help until the 20th century. Many 
had to enlist the aid of a person on the clerk’s staff or perform functions such 



Evolution of Court Management 


233 


as writing opinions themselves. Secretarial support is now provided through the 
Administrative Office of the Courts. Although states had been providing them 
for some time, the federal courts were not officially authorized to appoint stenog¬ 
raphers or court reporters until 1944 (Surrency, 1987). 

Despite the creation of management-level positions, it is still most often a 
judge who is officially the chief administrative person. At the head of the entire 
system, that role generally falls on the Chief Justice. However, each level of court, 
and often each individual Courthouse, has a judicial officer at least nominally in 
charge of court management. At the trial-level court, that person is frequently 
called the presiding judge. According to Wice: 

The one judicial officer who is most likely to be interested in the court admin¬ 
istrator’s services is the presiding, or chief administrative judge of the local 
court system. His or her primary responsibilities are to keep the cases flowing 
in as efficient a manner as the administration of individual justice permits. 

The other functions of this chief judicial officer varies depending upon local 
tradition and preference but most perform the following tasks: (1) assign 
judges to various courts, (2) initiate disciplinary action against members of 
the bench, (3) act as spokespersons for bench to bar and general public, (4) 
preside over functions involving the bench, (5) serve as ex officio members of 
various committees within the court system, (6) decide administrative matters 
such as vacations and retirements of court members and (7) plan and execute 
continuing education projects (1985:52-53). 

The presiding judge, of course, also has his or her own personal caseload 
to manage. Wice (1985) observed a tension between judges and the presiding 
judge, as well as between all judges and the court administrator. Although the 
positions have been created to relieve their administrative burden, many judges 
viewed court managers as making their lives “miserable” through a massive 
amount of paperwork and red tape (Wice, 1985:153). Court administrators often 
become targets of judges’ frustration. 

This tension between judges and administrators is not an entirely new 
phenomenon, and resolving it is a continuing enterprise of court administration. 
Lefever (1990) notes that incorporating professionals into a bureaucracy has 
been problematic every time it has occurred. Such persons identify more with 
their professions than with the work organizations of which they may be mem¬ 
bers. For example, the goals of “justice” or “due process” may be the goals 
of the legal profession, but are difficult to translate into task procedures. 

It is increasingly recognized that what is necessary to resolve these tensions 
among court employees is the integration of two cultures: management and legal. 
To achieve this integration in the courts requires a holistic view of the organiza¬ 
tion as an open system, and a team approach to management (Lefever, 1990). It 
necessitates a recognition that ‘ ‘the dichotomy between judicial and managerial 



234 


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functions is largely artificial” (Lefever, 1990:10). What the judges do with their 
individual caseload affects management of the court overall, and what court ad¬ 
ministrators do, affects judges’ individual caseloads. The tasks of judges and 
administrators are interdependent. The team approach can work because ‘ ‘judges 
have the organizational power but lack the operational knowledge, and the court 
managers have the knowledge but lack the power” (Lefever, 1990:11). As the 
pressures from the public for more accountable courts mount, the need to nurture 
the relationship between judges and court employees is increasingly recognized 
and respected. 


B. Court Administrators as “Professional” Managers 

Mosher (1982) defined a profession as a reasonably clear-cut occupational field 
that requires education at least through the bachelor’s level, and that offers a 
lifetime career. He further classified professions into those that exist in both the 
private and public sectors and those that have been created solely within govern¬ 
ment. He also noted the existence of “emerging professions,” which are “val¬ 
iantly and hopefully pulling themselves up by their vocational bootstraps to full 
professional status” (Mosher, 1982:117). Court administrators and managers 
would appear to fall in the emergent category. Indeed, David Saari specifically 
describes court management as “an emerging and evolving multidisciplinary pro¬ 
fession” (1982:4). As noted below, while at first merely members of the legal 
profession, these individuals are now more likely to have obtained other more 
job-specific education, and to have assumed more distinct and exclusive roles in 
the connection with court functioning. 

1. Areas of Responsibility 

Saari et al. (1993) classify modem court management functions into operations, 
fiscal services, and special support services. Operations are those functions most 
connected to the making of the courts product, justice, and include case manage¬ 
ment, calendar management, courtroom support, research, and program develop¬ 
ment. Fiscal services concern budgeting and other monetary matters. Special ser¬ 
vices include functions that are unique to the courts and difficult to categorize, 
including probation and pretrial services, as well as jury pool administration. 

This expansion in functions and responsibilities is attributable to both the 
growth in the use of court managers and the injection of nonlegal personnel into 
that position (Saari et al., 1993). As management techniques continue to be 
brought to the courts; and as the complexity of the judicial organization increases, 
this trend will undoubtedly continue. Likewise, judges may become more tolerant 
of, and dependent upon, professional management personnel. 



Evolution of Court Management 


235 


2. Qualifications and Education 

The increasingly complex nature of the organization and the expanding role of 
administrators will continue to stimulate the need for persons possessing more 
extensive qualifications. The traditional view of court management was legalistic 
in nature, and focused on matters such as the proper manner in which to conduct 
a trial and jurisdictional issues (Saari, 1982). Indeed to many lawyers and judges, 
court management is still a topic of “peripheral interest” (Saari, 1982:1). Other 
disciplines bring a similarly limited perspective to their area of responsibility. 
As such, to address the complexity of the modem courts, court administrators 
will have to go beyond the strictly legal and take a ‘ ‘comprehensive, organic, 
and holistic view of the judicial branch.” (Saari, 1982:4). 

According to David Orrick, the issue of what qualifications and education 
a court administrator should possess is still an “open book” (1995:183). For 
much of the existence of the position, it was assumed that court managers would 
be lawyers. Indeed, the 1948 State Court Administrator Model Act approved by 
the National Conference of the Commission on Uniform State Laws implied 
that the ad min istrator would be a lawyer (Lawson and Howard, 1991:585). Cur¬ 
rently, the number of institutions and organizations providing curricula specific 
to court administration has been increasing, and the education of court managers 
continues to evolve. 


C. Development of Professional Support 

Since Roscoe Pound’s call to arms in 1906, many associations and organizations 
have been formed to support court administration, some of which deserve particu¬ 
lar recognition here for their contributions to the field. For example, in 1913, the 
first organization to promote judicial administration, the American Judicature 
Society, was formed. This organization originally had a primary focus on issues 
pertaining to judges rather than court operations. It addressed issues such as com¬ 
pensation, election, and tenure. It was, and still is, instrumental in promoting the 
movement to judicial councils as the most desirable administrative structure 
(Tobin, 1997). Judicial councils typically are comprised of members of the bench 
and bar as well as representatives from the public, and have the primary functions 
of policy development and planning. Thirty-seven states currently have such bod¬ 
ies (Tobin, 1997:16). According to its Internet home page, the American Judica¬ 
ture Society is also currently active in promoting increased public interaction 
with the courts to improve customer service and public opinion. 

Established in 1967, the Federal Judicial Center is the research and educa¬ 
tion department of the federal judiciary. It was created by statute, and its Board 
of Directors is chaired by the Chief Justice of the United States. According to its 
website, it provides education programs for both the judicial and the nonjudicial 



236 


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personnel in the federal system. Training programs and services include manage¬ 
ment training, as well as training for pretrial services and probation personnel. 

The National Center for State Courts (NCSC), founded in 1971 at the urg¬ 
ing of Chief Justice Warren E. Burger, is an independent, nonprofit organization 
dedicated to the improvement of justice. NCSC is the state companion to the 
Federal Judicial Center (Tobin, 1997). According to its website, its leadership 
activities include: 

Developing policies to enhance state courts 

Advancing state courts’ interests within the federal government 

Fostering state-court adaptation to future changes 

Securing sufficient resources for state courts 

Strengthening state court leadership 

Facilitating state court collaboration 

Providing a model for organizational administration. 

Its service activities include: 

Providing assistance 
Solving problems 
Creating knowledge 

Informing, educating, and communicating state court interests 
Supporting court organizations. 

In 1984, The State Justice Institute (SJI) was established by an act of Con¬ 
gress. Its function is to award grants to improve the quality of justice in state 
courts. NCSC has received numerous such grants, as evidenced by the many 
publications referenced in this chapter. According to the SJI webpage, SJI has 
awarded over $120 million in grants to support over 1,000 projects. In addition 
to technical assistance and other grants, SJI carries out its functions by developing 
products, maintaining information clearinghouses, and conducting educational 
programs. 

State court and trial court administrators each have their own supporting 
associations. In 1955, the state court administrators created the National Confer¬ 
ence of Court Administrative Officers, an entity that was open to membership 
by trial court managers. In 1965, the trial court administrators formed their own 
association, the National Association of Trial Court Administrators. This organi¬ 
zation merged with another, and is now constituted as the National Association 
for Court Management. Between 1985 and 1997, the growth of this entity was 
“spectacular, considering there were fewer than ten trial court administrators in 
the early 1960s” (Tobin, 1997:22). It now has more than 2,000 members. In 1971, 
the state court administrators formed their own organization, the Conference of 



Evolution of Court Management 


237 


State Court Administrators. Every state is now represented in this association 
(Tobin, 1997). 


V. CURRENT TRENDS 

Today, there is the recognition that courts do not operate in a vacuum. For exam¬ 
ple, while both legislative and executive agencies can anticipate the amount and 
type of workload, the courts to a large degree cannot. The courts, particularly 
the trial courts, do not control their own agendas. Their work begins only when 
a case is filed, and the filing of cases is controlled by forces outside of the system. 
This has clear implications for the budgetary process, among other things. 

It is now understood that courts, like other organizations, are “open sys¬ 
tems” (see, e.g., Katz and Kahn, 1966). And, as in other open systems, the struc¬ 
ture of the courts is “dependent upon organizational environment” (Saari, 1982: 
35). Environmental influences, such as political and socioeconomic forces, have 
combined with an increasingly complex caseload and a changing organizational 
structure to create managerial uncertainty. In light of this, Saari (1982) points to 
contingency theory and the boundary scanning concepts of J. D. Thompson 
(1967) as critical to a court administrator’s understanding of his or her role, and 
to addressing the uncertainty that environmental and other inputs can create. 

Theories that acknowledge inputs from the environment can be seen in 
current court management trends. The development of means to address the 
courts’ accountability to their various stakeholders is clearly the direction that 
court management is taking. For example, for some time external criticism caused 
the courtroom workgroup, consisting of judges, support staff, and attorneys, “to 
adopt a siege mentality and draw together within the courthouse walls, often 
hiding their hostility behind nervous laughter” (Wice, 1985:49). Recently, court 
administrators are taking a more aggressive stance to improve the public’s opin¬ 
ion of the courts, recognizing the importance of environmental influences to ef¬ 
fective management. 

Interestingly, Roscoe Pound (1906) enumerated many environmental chal¬ 
lenges to judicial administration that court managers still face today: 

Finally, . . . causes lying in the environment of our judicial administration, 
we may distinguish six: (1) Popular lack of interest in justice, which makes 
jury service a bore and the vindication of right and law secondary to the 
trouble and expense involved; (2) the strain put upon law in that it has today 
to do the work of morals also; (3) the effect of transition to a period of 
legislation; (4) the putting of our courts into politics ; (5) the making of the 
legal profession into a trade, which has superseded the relation of attorney 
and client by that of employer and employee, and (6) public ignorance of 



238 


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the real workings of courts due to ignorant and sensational reports in the 
press. 


A. Performance Measurement 

As noted above, court administration has evolved from very inconspicuous begin¬ 
nings. Early courts possessed little in the way of management structure and con¬ 
sisted of isolated, autonomous judges. Eventually, the first reforms concentrated 
on the organizational structure of the courts. Saari (1995) notes that court admin¬ 
istration initially focused on structural matters and only later on the needs of 
court personnel. The later changes gave increased attention to the managerial 
structure itself and the increased professionalization of managers. More recently, 
the trend has been to concentrate on the development of improved administrative 
methods, based increasingly on the need to be responsive to the public and other 
stakeholders. 

Neely (1981) argues for “rigorous application” of tools such as cost/bene¬ 
fit analysis to the procedures employed by the courts. Critics of this view, basing 
their opinions on the fact that justice is not a tangible product, argue that this is 
inappropriate. To that, Neely retorts: 

The answer is that you do not measure justice, just as you do not see the 
wind. But when the roof goes flying off your house you know very well that 
some powerful wind is out there. When courts take four years to arrive at 
final decisions, when cases involving simple matters cost tens of thousands 
of dollars in legal fees, and when litigants are put to enormous inconvenience, 
it is possible to say the process does not work. (1981:221). 

Despite this debate, there is now an extensive focus on ‘ ‘what courts actu¬ 
ally accomplish with the means at their disposal” and “on the needs of those 
served by the courts” (Saari, 1995:1). Trends affecting both government and the 
private sector are the reasons behind this shift. Accountability on the part of all 
government entities is becoming a central part of their management. Government 
institutions must justify their decisions to use public funds and must demonstrate 
that they are being used wisely. One major concern, after court structure, has 
therefore become performance measurement. 

The trend towards the development of performance measures has tracked 
that of the overall trends in court management as well. Early efforts at measure¬ 
ment were designed to forecast needs such as staffing (Lawson and Gletne, 1980: 
51). These methods consisted of the conduct of time studies and the assignment 
of weights to cases with regard to the time required to process them. The weights 
were then used to determine a particular judge’s needs for staffing and resources 
based on the types of cases assigned (Lawson and Gletne, 1980:54). 

Performance standards are still developed to move cases through the system 



Evolution of Court Management 


239 


more efficiently, and many modern issues of performance measurement still sur¬ 
round budgeting and nonjudicial staffing. Today, however the measurement of 
performance comes in many interrelated contexts and can pertain to both intraor- 
ganizational and extraorganizational performance. With increasing frequency, 
these measures are also becoming available to outside stakeholders, such as vot¬ 
ers, to provide a gauge of performance concerning the qualifications of a judicial 
officer and the quality of the courts. 

1. Judicial Performance 

Probably the most sensitive area in any analysis of court systems has been that 
of measuring “judicial performance.” The reason for this is that, historically, 
the measurement of judicial performance had been linked to the ability of a judge 
to dispose of cases in a timely fashion. According to American Bar Association 
(ABA) (1985) standards, 90% of civil cases should be resolved within a year of 
filing. In divorce cases, the ABA says 90 percent should be resolved within 6 
months, and all of them within a year. 

However, cases vary greatly in complexity and in the amount of time be¬ 
tween filing and disposition. A judge may need to hear a large number of pretrial 
motions and decide many postjudgment matters in a single case. A judge may 
also spend considerable time doing research, overseeing discovery procedures, 
evaluating presentence reports, or refining jury instructions for complex cases. 

As with justice, “performance” cannot always be reflected in strictly quan¬ 
titative data. Therefore, the difficulty in assaying judicial performance has histori¬ 
cally had two main facets: (a) how the quality of a judge's work is measured; 
and (b) fairness in comparing such matters as disposition rates among judges 
who are assigned different tasks. In light of the above, measuring judicial produc¬ 
tivity and performance must be a combination of appropriate data-gathering tech¬ 
niques and development of an appropriate standard to which that data are applied. 
According to Workload Measures in the Court , published in 1980 by the National 
Center for State Courts, there are three basic methods for measuring performance 
(Lawson and Gletne, 1980). The three measures are the historical method, the 
Delphi method, and the weighted caseload method. 

The historical method is one of the most common. It uses basic data readily 
available to virtually all courts, such as case filings, number of pending cases, 
and number of dispositions. For example, one method of historical analysis takes 
the number of employees and the number of cases terminated, and merely divides 
the number of cases terminated by the number of employees to calculate the 
workload of the employees. Employee-judge ratio is another example of histori¬ 
cal calculation of workload. Such data are then used to predict needs or perfor¬ 
mance in the future. The problems with the historical method are that it fails to 
take into account the various types of cases that a court may encounter, nor does 
ti look at the level of complexity in the various types of cases. 



240 


Derr 


The Delphi process is essentially a method of arriving at a consensus on 
any given issue through the use of a panel of persons who are experts in the 
particular task being studied. Questionnaires are distributed to the experts that 
ask for their estimate of how long the task will take. In a second round of ques¬ 
tionnaires, each expert is asked to reconsider the first estimate and may revise it 
if desired. In a third round of questionnaires, medians and ranges of all of the 
experts’ estimates are distributed, and comment is requested. This last step is 
then repeated. The final product is a standard of how long the task should take. 

The weighted caseload method is used to translate court caseload into work¬ 
load, and it is arguably the most valid approach for assessing judicial perfor¬ 
mance. Because court cases vary in complexity, a weighted caseload measure is 
considered to have several advantages over other methods used to assess perfor¬ 
mance and the need for resources. First, weighted caseload analyzes the mix of 
case filings rather than just the number of filings. Merely totaling the number of 
cases filed is not a good indicator of the amount of time it will take to dispose 
of that caseload. In the absence of weighting, all cases are treated equally. For 
example, 100 uncontested traffic cases are viewed the same as 100 product liabil¬ 
ity cases. However, in a weighted performance measure, the nature and type of 
the case are considered. 

The process of ‘ ‘weighting’ ’ involves identifying the steps involved in pro¬ 
cessing a particular kind of case, the frequency with which these steps occur in 
each type of case, and how much judge time each event requires. Event frequency 
is determined by a careful review of case records, and time is measured by collect¬ 
ing data through a time study. In such a study, judges are asked to monitor their 
time spent working on cases, both on and off the bench, for a specified period 
of time for every type of case event. While the drawback of this method is that 
it is very labor intensive, the final product of a weighted caseload study is a 
number that approximates the average time needed to process a particular type 
of case from filing to disposition. This can be used as the standard for how many 
cases can reasonably be processed by a judge, and to determ in e how many judges 
are needed in a particular court. 

However, with regard to determining the cause for failure to dispose of a 
case in a timely fashion, it is often hard to divorce the role of the judge from 
that of the litigants or court staff. Judges must depend upon input from third 
parties (e.g., presentence reports). While it may have historically been viewed 
as mostly an indicator of a judge's performance, the concepts of caseflow and 
caseflow management have expanded to reflect overall court performance and 
are major components of modern management practices. 

The trend in court performance evaluation methods, therefore, is to take a 
more holistic, systems-oriented approach to measuring efficiency. For example, 
in a publication by the National Association for Court Management, entitled How 
to Conduct a Caseflow Management Review (1988b) NACM recommends that 



Evolution of Court Management 


241 


a comprehensive caseflow management review be conducted that takes into ac¬ 
count the size and nature of the caseload, the resources available to the court 
(number of judges, staff, courtrooms, etc.), the organization of the court, and the 
operational practices of the court and those who are involved in its day-to-day 
business. 

2. Overall Court Performance 

When talking about such overall performance standards, the focus is most often 
on the trial courts. Despite this, until very recently no performance standards for 
trial courts existed. In 1987, the National Center for State Courts and the Bureau 
of Justice began the Trial Court Performance Standards (TCPS) Project. It was 
a 3 year effort that culminated in 1990 with the promulgation of standards and 
a measurement system. The standards reflect the pressing need not only to be 
more efficient but also to be more accountable. According to the National Cen¬ 
ter’s Research Division (1997), “The TCPS is a set of 22 standards for effective 
court performance in five areas: access to justice; expedition and timeliness; 
equality, fairness, and integrity; independence and accountability; and public trust 
and confidence.” These five areas are now considered by some to be the “mis¬ 
sion” of the court system (see, Gist, 1995). 

Specific performance standards are identified within each of the above five 
areas. One such standard (Standard 2.1), for example, requires the establishment 
of and compliance with recognized guidelines for timely case processing, and 
keeping current with incoming caseloads (Gist, 1995:2). To determine the extent 
to which the standards have been met, performance measures have been devel¬ 
oped. In connection with Standard 2.1, for example, one measure involves the 
review of the court files to determine the ratio of case dispositions to case filings 
(Gist, 1995:2). The results of these measures allow for the creation of a strategic 
plan, one that is “based on systematic data, rather than intuition and guesswork” 
(Gist, 1995:2). 

The TCPS therefore entails a methodical appraisal of judicial performance 
from the perspective of the court as an organization providing a service to those 
who use it (Gist, 1995). It is a comprehensive and systemic analysis that involves 
not only judges but also staff and others involved in the business of the courts. 
Since the standards view the court as a system of interlocked processes, perfor¬ 
mance therefore involves all actors, not just judges. Gist describes this develop¬ 
ment in the evolution of court administration as: 

The creation of TCPS is one of the most significant events injudicial admin¬ 
istration in the last 10 years. Bringing attention to trial court performance, 
self-assessment, and consumer orientation, TCPS has provided a new frame¬ 
work for understanding the practical effectiveness of trial courts and their 
unique local legal cultures. (1995:2). 



242 


Derr 


Attempts by court managers to apply some criteria of efficiency or effec¬ 
tiveness, in order to demonstrate that the courts are meeting the demands of their 
stakeholders, are problematic. “The causal link between poor management and 
poor justice is very difficult to prove with empirical data, but there are ways to 
explore this question.” (Saari, 1982:13). 

B. Technology 

Modern court administration clearly cannot function effectively without the com¬ 
pilation of extensive statistical information pertaining to productivity. Among 
other things, this information enables administrators to identify where services 
can be accelerated, where bottlenecks occur, and what resources are available 
for deployment, or are needed, at any given time. Orrick observed a “lack of 
up-to-date equipment” in America’s courts (1995:186). This, however, is chang¬ 
ing as well. Arguably one of the most important advances in court technology 
comes in the area of sharing information between courts. Lemov (1997) cites the 
example of Richard Ramirez appearing in court at the same time he was being 
tracked as a murder suspect. To combat this, the courts and law enforcement 
agencies in Los Angeles are joining together their various databases to enable 
access to information each holds but which was previously inaccessible. 

There are other examples. Sonntag (1997) describes Washington’s use of 
a computerized system to reconcile court dates with police officers’ work sched¬ 
ules to save both the courts and police departments time and expense. Another use 
of technology comes in some of California’s Superior Courts (e.g., Los Angeles 
County). There, all filings contain a bar code that the computer reads to place 
the filed pleading on a computerized docket. Any necessary deadlines and hear¬ 
ings are then automatically calendared. Clearly, the trend is to use modern equip¬ 
ment as a complement to modern management techniques. 

C. Use of Current Mainstream Management Practices 

Another attempt to improve efficiency and productivity, as well as an indicator 
of the evolution of court management as an administrative profession, can be 
seen in the attempt by some courts to adapt mainstream management practices 
to the judiciary. One example of this is the use of total quality management 
(TQM) and similar techniques. In the early 1990s, the National Center for State 
Courts conducted a survey to determine the extent of use of total quality manage¬ 
ment practices by court administrators (Fleischman and Aikman, 1993). The re¬ 
searchers were interested in learning how many state courts were attempting to 
establish practices that were client-centered. They found that very few courts had 
implemented a total quality management-type plan. The reason for this hesitation 
can be traced to the unique makeup of the courts and the reluctance of officials, 
particularly presiding judges, to be attentive to the administrative portion of their 



Evolution of Court Management 


243 


duties (Fleischman and Aikman, 1993). The key to overcoming these obstacles, 
as in other organizations, lies in extensive planning and obtaining the commit¬ 
ment of organizational leaders and employees (Fleischman and Aikman, 1993). 

To assist in that effort, the National Center for State Courts provides train¬ 
ing and a handbook. The goal of the National Center for State Courts is to “meld 
the Trial Court Performance Standards with TQM to bring a practical application 
of TQM to the courts” (Fleischman and Aikman, 1993:21). The National Center 
for State Courts’ program, among other things, addresses selecting the areas for 
applying TQM, obtaining support, measuring performance, and long-range strate¬ 
gic planning (Fleischman and Aikman, 1993). 

In those courts employing the practices, continuing quality improvement 
techniques were found to be as effective as in other organizations. The courts 
using TQM reported that it indeed resulted in attitudinal changes in court employ¬ 
ees. Furthermore, the focus is on improved efficiency and productivity, as well 
as budgetary savings. Finally, strategies such as TQM can be an important foun¬ 
dation of budgetary requests to the legislature, providing both a big-picture per¬ 
spective as well as specific instances of improved performance. However, court 
management is only slowly easing into such modern administrative approaches. 
As of the 1993 survey, Fleischman and Aikman had identified only 14 state or 
trial courts experimenting with TQM-like management strategies. 

It appears the role of court administrators will continue to evolve for some 
time in a customer-focused vein. Judges and court managers are realizing the 
importance of both quality dispositions in individual cases and overall public 
satisfaction. Although court administrators cannot appropriately influence the 
outcome in particular cases, they play an extensive role in making the judiciary 
an organization that effectively meets the expectations of its stakeholders. Chief 
Justice Rehnquist (1999) noted the necessary balancing of interests and the role 
of administrators as follows: 

Whatever may be the merits or demerits of a poll-driven executive or poll- 
driven legislature, the specter of a poll-driven judiciary is not an appealing 
one. So the search for greater public trust and confidence in the judiciary 
must be pursued consistently with the idea of judicial independence. This 
does not mean that there is not a great deal that can be done along that line. 
Improved juror utilization; arrangements by which jurors play a more active 
part in the deliberation of a court, such as are now being carried out in Ari¬ 
zona and some other states; and courts giving plain reasons for reaching a 
result are all useful steps in that direction. 


VI. CONCLUSION 

In many ways, the evolution of the courts and of court management parallels 
that of business and public administration in general. The complexity of court 



244 


Derr 


organizations has increased to meet the ever-expanding demands of society. To 
meet these increased demands, the court-management field has become multidis¬ 
ciplinary, “a fact not too different from business-management or other govern¬ 
ment-management fields” (Saari, 1982:4). At the same time, however, modern 
courts remain unique political institutions, with administration largely (and 
largely necessarily) disconnected from the production of organizational out¬ 
puts. 

Neely, in his work on understanding the courts as more than merely a legal 
entity, concluded that “the greatest contribution to improving the system at the 
moment is a general understanding of how it works” (1981:221). In that regard, 
courts must be viewed as a political system comprised of human beings who are 
susceptible to the pressures that a political system brings to bear. The importance 
of seeing the courts as an open political system with an uncertain environment 
cannot be overstated. 

As the courts’ need for resources has increased, the need for increased 
appropriations has increased. In turn, appropriating bodies and the public demand 
more “accountability.” Accountability is a sensitive term to judges, who fear 
the loss of judicial independence (Tobin, 1996). As Saari notes: “Seeking to 
avoid uncertainty and faced with demands for accountability, courts employ court 
managers to enlarge their managerial domain, to give them programmatic style, 
to offer greater flexibility in defining effectiveness, and to initiate a search for 
it” (1982:51). 

Court administrators must balance the tension created by the demands 
placed upon the courts by numerous stakeholders, each of whom has its own 
criterion to measure court performance. However, attempts to rationalize court 
operations may add to the ‘ ‘mounting tension between judicial and administrative 
roles in trial courts” (Mort and Hall, 1980:12). As such, modem court managers 
must also deal with the conflict that arises between the adjudicative function of 
the courts, with judges focused on providing this justice, and the nonadjudicative 
functions of the courts, wherein they are attempting to attain organizational effi¬ 
ciency. 

Against this backdrop is overlaid the critical question of whether improved 
administrative methods result in improved justice. Justice, after all, is the service 
that the courts are in existence to provide. And, unfortunately for court adminis¬ 
trators, “justice” can mean different things to different people. 


REFERENCES 

Administrative Office of the Pennsylvania Courts (1996). 1995 Caseload Statistics of the 
Unified Judicial System of Pennsylvania, Mechanicsburg. PA. 

American Bar Association Action Commission to Reduce Court Costs and Delay. (1984). 



Evolution of Court Management 


245 


Attacking Litigation Costs and Delay: Project Reports and Research Findings, 
American Bar Association, Washington D.C. 

American Bar Association Special Committee on Evaluation of Judicial Performance 
(1985). Guidelines for the Evaluation of Judicial Performance, American Bar Asso¬ 
ciation, Washington D.C. 

American Judicature Society. (1999). Home page at www.ajs.org. 

Baum, L., Goldman, S., and Sarat, A. (1982). The evolution of litigation in the federal 
courts of appeals, 1895-1975, Law Soc. Rev. 16(2): 291-309. 

Branigin, R. D. (1990). The evolution of the Supreme Court’s retroactivity doctrine: A 
futile search for theoretical clarity, J. Criminal Law Criminal. 80(4): 1128-1153. 

Davis, S., and Songer, D. R. (1995) The changing role of the United States Courts of 
Appeals: The flow of litigation revisited, in Courts and Justice, L. G. Mays and 
P. R. Gregware, eds., Waveland Press, Prospect Heights, IL. 

Derr, K. L. (1996). Special Report: Legislative Issues Arising From the Court Funding 
Case, Senate Policy Development and Research Office, Harrisburg, PA. 

Downs, G. W., and Larkey, P. D. (1986). The Search for Government Efficiency: From 
Hubris to Helplessness, Random House, New York. 

Epstein, L., and Knight, J. (1998). The Choices Justices Make, Congressional Quarterly, 
Washington D.C. 

Feeney, F. (1993). Evaluating trial court performance, in Handbook of Court Administra¬ 
tion and Management, S. W. Hays and C. B. Graham, eds., Marcel Dekker, New 
York. 

Fleischman, A. L., and Aikman, A. B. (1993). Total quality management: Where the courts 
are now. National Center for State Courts, Williamsburg, VA. 

Gazell, J. A. (1975). State Trial Courts as Bureaucracies: 4 Study in Judicial Manage¬ 
ment, Dunellen Publishing Company, New York. 

Gazell, J. A. (1978). The Future of State Court Management, Kennikat Press, Port Wash¬ 
ington, NY. 

Gist, N. E. (1995). Fact sheet: Trial court performance standards and measurement system, 
United States Department of Justice, Bureau of Justice Assistance, Washington 
D.C.. 

Glick, H. R., and Vines, K. N. (1973). State Court Systems, Prentice-Hall, Englewood 
Cliffs, N.J. 

John, H, B. (1996). Milwaukee County’s judicial system reshapes itself. Court Manager 
11( 1): 34-39. 

Katz, D, and Kahn, R. L. (1966). The Social Psychology of Organizations, John Wiley 
and Sons, New York. 

Lawson, H. O., and Gletne, B. J. (1980). Workload Measures in the Court, National Center 
for State Courts, Williamsburg, VA. 

Lawson, H. O., and Howard, D. E. (1991). Development of the profession of court man¬ 
agement: A history with commentary. Justice System J., 15(2): 580-603. 

Lefever, R. D. (1990). Judge-court manager relationships. Court Manager, summer: 8— 

11 . 

Lemov, D. (1997). Bringing order to the courts, Governing Feb: 58-59. 

Mays, G. L., and Taggart, W. A. (1994). Court clerks, court administrators, and judges: 
Conflict in managing the courts, in The Administration and Management of 



246 


Derr 


Criminal Justice Organizations, Stojkovic, S., et al., eds., Waveland Press, Prospect 
Heights, IL. 

Mort, G. A., and Hall M. D. (1980). The trial court administrator: Court executive or 
administrative aide, Court Management J. 72(16): 30-31. 

Mosher, F. C. (1982). Democracy and the Public Service, 2nd ed., Oxford University 
Press, New York, NY. 

National Advisory Commission on Criminal Justice Standards. (1973). Courts, U. S. Gov¬ 
ernment Printing Office, Washington, D. C. 

National Association for Court Management (1988a). The Court Administrator: A Manual, 
NACM, Williamsburg, VA. 

National Association for Court Management (1988b) How to Conduct a Caseflow Man¬ 
agement Review, NACM, Williamsburg, VA. 

NCSC Research Division. (1997). Trial court performance standards and measurement 
system, www.ncsc.dni.us/research/standard/tcps.htm. 

Neely, R. (1981). How Courts Govern America, Yale University Press, New Haven, CT. 

Orrick, D. (1995). Court administration in the United States, “in Courts and Justice: A 
Reader, G. Mays and P. Gregware, eds., Waveland Press, Prospect Heights, IL, pp. 
179-199. 

Pound, R. (1906). The causes of popular dissatisfaction with the administration of justice, 
paper read at the Twenty-ninth meeting of the American Bar Association on August 
29, 1906, reprinted numerous times, see, e.g., J. Am. Judicature Soc., 20: 178, 1937. 

President’s Commission on Law Enforcement and Administration of Justice. (1967). The 
Challenge of Crime in a Free Society, U.S. Government Printing Office, Washing¬ 
ton, D.C. 

Rehnquist, W. H. (1999). Keynote address, delivered on May 15, 1999 to the National 
Conference on Public Trust and Confidence in the Justice System sponsored 
by the League of Women Voters, the Conference of State Chief Justices, the Amer¬ 
ican Bar Association, and the Conference of State Court Administrators, 
www.ncsc.dni.us/PTC/trans/rehnqst. 

Rittel, H, and Webber, M. (1973). Dilemmas in a general theory of planning, Policy Sci. 
4. 

Rossman, D. (1990). Were there no appeal: The history of review in American criminal 
courts, J. Criminal Law Criminol. 81(3): 518-566. 

Rourke, F. (1984). Bureaucracy, Politics and Public Policy, 3rd ed., Harper-Collins, New 
York. 

Saari, D. J. (1982). American Court Management: Theories and Practices, Quorum Books, 
Westport, CT. 

Saari, D. J., Planet, M. D., and Reinkensmeyer, M. W. (1993). The modern court manag¬ 
ers: who they are and what they do in the United States, in Hays, et al., eds. Hand¬ 
book of Court Administration and Management, Marcel Dekker, New York. 

Saari, D. J. (1995). Trial Court Performance Standards: Testing the Measures. State Jus¬ 
tice Institute, Alexandra, Virginia. 

Sonntag, A. (1997). Court system saves more than time, Gov. Technol., 10(4): 1, 61. 

Spaeth, H. J. (1979). Supreme Court Policy Making: Explanation and Prediction. W. H. 
Freeman and Company, San Francisco. 

Starrett, C. H. (1986). The evolution of a profession. Court Manager Summer: 5-7. 



Evolution of Court Management 


247 


State Justice Institute (1999) www.statejustice.org. 

Surrency, E. C. (1987). History of the Federal Courts, Oceana Publications, Inc., New 
York. 

Thompson, J. D. (1967). Organizations in Action, McGraw-Hill, New York. 

Tobin, R. W. (1981). The Transition to State Financing of Courts: The Implications for 
Financial and Personnel Management, monograph, National Center for State 
Courts. 

Tobin, R. W. (1996). Funding the State Courts: Issues and Approaches, State Justice 
Institute, Alexandra, VA. 

Tobin, R. W. (1997). An Overview of Court Administration in the United States, mono¬ 
graph, National Center for State Courts. 

Wheeler, R. R., and Whitcomb, H, R. (1977). Judicial Administration: Text and Readings, 
Prentice-Hall, Inc., Englewood Cliffs, N.J. 

Wice, P. B. (1985). Chaos in the Courthouse: The Inner Workings of the Urban Criminal 
Courts, Praeger Publishers, New York. 



This Page I nbentionally Left Blank 



14 

Evolution of the 
Correctional Process 

Peter M. Wickman and Korni Swaroop Kumar 

State University of New York, College at Potsdam, Potsdam, New York 


The discretionary power, by virtue of which the lowest keeper at Au¬ 
burn, and ... the turnkeys at Sing Sing, lash the prisoner, is little contested 
in the United States ... at present all new penitentiaries . . . Philadelphia 
excepted, make use of the whip. The laws of the country authorize the disci¬ 
pline . . . and these laws have the sanction of public opinion. 

de Beaumont and de Tocqueville, 1964:77-78 

Since I came into this department 15 years ago, the correction workers 
discretion has either been eroded by administrative memorandum, by court 
decision, or by some other accommodation with the inmate . . . Prisoners’ 
rights have become a sensitive issue over the past fifteen years due to media 
exposure ... The officer always has to prove himself, but the inmate always 
receives the benefit of the doubt. This is what bums me out, it isn’t the years 
or the stress. 

Interview with Correction Officer, New York DOCS, 1984 


I. FROM COERCIVE CONTROL TO THE NEW PENOLOGY 

“The evolution of the correctional process” brings into focus the variety of poli¬ 
cies and means developed over the years, and employed by agents of the state to 
carry out legal sanctions—or punishments—imposed upon convicted criminals. 
Given the increased reliance on incarceration throughout the several centuries of 
American correctional history, the major concentration today is on institutional 


249 



250 


Wickman and Kumar 


correction. There have been numerous studies of prisons by sociologists and other 
scholars. Most of these, notably those of Clemmer (1958:xi) and Sykes (1958: 
8), feature a view of the prison’s organization with a focus on the daily round 
of prison life for prisoners and staff. 

The material presented here is an attempt to employ insights from a wide 
sampling of the works cited in order to sketch a broad, macrosocial view of the 
evolution of the prison in the correctional process. That is, we will attempt to 
relate this evolution to the changing social structure and political order of the 
nation. 

What emerges is an apparent 4 ‘full circle’ ’ in the evolution of corrections. 
The correctional process has evolved from a focus on coercive control, to its 
present focus with variations on that concern in the latter-day New Penology of 
the 1990s. Over the past several centuries we have moved from forms of punish¬ 
ment that relied on humiliation, physical torture, mutilation, whipping, consign¬ 
ment to galleys, banishment, and. over the last century and a half, a reliance on 
imprisonment. 


A. Corrections and Punishment in Colonial America 

Variations in the manner and severity of punishments may be clarified when one 
considers that even though the English Colonies operated under English Penal 
Standards, the distance from England, and the nearness of the wilderness, did 
much to mitigate the law in action. Lawrence Friedman (1993:36-41) contends 
that the colonial frame of mind and the unique structure of colonial society influ¬ 
enced what and how crimes were punished. A glaring example of this discrepancy 
is that although adultery was not a capital offense in England, it could warrant 
the death penalty in Massachusetts (see also Wickman and Whitten, 1980:527- 
530). 

Imprisonment, which was typically omitted in the Colonial era as a punish¬ 
ment, in the postrevolutionary era became a kind of substitute for capital punish¬ 
ment. Laws to establish prisons were not enforced until after the Revolution. The 
old Walnut Street Jail in Philadelphia had been renovated in 1790 under the 
influence of Dr. Benjamin Rush’s Philadelphia Prison Reform Society; however 
by the early 19th century it had become overcrowded and unworkable. The state 
legislature, at the urging of the same reformers, enacted legislation in 1821 that 
led to the construction of America’s first fortress-like prison, the Eastern Peniten¬ 
tiary of Pennsylvania, known as Cherry Hill. It included 400 large solitary cells, 
8 by 15 feet, with individual exercise yards. This Pennsylvania model emphasized 
the separation of the offender from the corrupt influence of other prisoners as 
well as society, since the prisoners worked in solitary cells or exercised alone in 
the yard (Wickman and Whitten, 1980:528-29). 



Evolution of the Correctional Process 


251 


B. Postrevolutionary America: Auburn Penitentiary as the 
Prototypal Institution 

The penitentiary opened at Auburn, New York, in 1819 became the archetype 
for America’s emergent penal system and the harbinger of over a century of 
tough coercive incarceration to come. This was partially due to the development 
of the congregate regime, in contrast to the solitary regime of the Pennsylvania 
model, which the New York reformers had initially attempted in the first several 
years at Auburn but found that it resulted in a high rate of suicide and mental 
illness. 

Consequently, the New York reformers concluded that complete isolation 
was unnatural, moreover it was argued that the solitary workshops were uneco¬ 
nomical. So at Auburn, and most other prisons in this era, prisoners worked 
together in silence from sunrise to sunset. They also ate together in silence and 
slept in solitary cells smaller by half than those in the Pennsylvania system. 

During its early years, Auburn was a profitable enterprise, which together 
with the reality that a congregate-type prison was less expensive to construct than 
the Pennsylvania-type prison, made it the more favorable model for emulation. 
Economic reasons were also reinforced by the tight coercive control and disci¬ 
pline at Auburn. Control was maintained by rigid enforcement of the rule of 
silence in the factories, during feeding time, and also at night when convicts 
might be attempting to communicate with others in nearby cells. As other Ameri¬ 
can prisons followed the Auburn model, with the exception of those in Pennsylva¬ 
nia, New Jersey, and Rhode Island, they were known more for their silence in 
general and their involuntary silent factories in particular, not as places of punish¬ 
ment (The Official Report of the New York Special Commission on Attica , 1972: 
6-9). 

Reformers came from various European countries to observe the Pennsyl¬ 
vania and New York systems. Among them were two French journalists, Gustave 
de Beaumont and Alexis de Tocqueville, the latter better know for his book 
Democracy in America. 

These journalists had been sent to America to study American prisons. 
Indeed, de Tocqueville and his colleague produced what some view as the first 
scholarly study of American prisons. Unlike many more recent studies (many of 
those published in the three decades after World World Two), their focus was 
on the relationship between the emergent penal system and the sociocultural pat¬ 
terns of American society (Jacobs, 1983:18). In his report of their visit to Auburn 
prison, de Tocqueville commented, “There were a thousand living yet it was as 
a desert solitude” (Jacobs, 1983:529). 

The two French travelers were impressed by the effectiveness of control 
exercised by prison staff, as evidenced by the observation that they did not ‘ ‘de¬ 
tect a single breach of discipline” (de Beaumont and de Tocqueville, 1964:64) 



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in the workshops at Auburn. They also referred to the admirable order that pre¬ 
vailed at Sing Sing and commented that it was that “which silence alone is capa¬ 
ble of maintaining” (de Beaumont and de Tocqueville, 1964:64). 

The young Frenchmen found that discipline, that is control, was more pow¬ 
erful in American prisons than in French. This, they concluded, was due to the 
arbitrary manner in which discipline was carried out in American prisons. For 
instance, there were no written rules or regulations at Auburn or Sing Sing, for 
prisoners or prison workers, yet the warden at the latter prison could delegate 
power to his “inferior agents,” while “the Auburn warden alone had power to 
punish” (de Beaumont and de Tocqueville, 1964:75-76) (i.e., use the whip). 
Further expansion of the span of discretion crept into the organizational structure 
relative to the prison inspector’s role. This official was the warden’s superior, 
and the law required him to be present when stripes were inflicted. The keepers 
gained discretion to administer stripes without the inspector’s presence since it 
caused some inspectors ‘ ‘painful feelings,” so they obtained relief from this duty. 

A notion of the widespread belief in the depraved nature of the prisoners, 
which may persist in a segment of prison staff to this day, may be gleaned from 
de Beaumont and de Tocqueville’s response to the rhetorical query: “Does soci¬ 
ety have a right to punish the convict who refuses the obligation of work or other 
discipline?” Their answer: 

We believe that society has the right to do everything necessary for its conser¬ 
vation, and for the order established within it_criminals, all of whom have 

infringed the laws of the land, and all of whose inclinations are corrupted, and 
appetites vicious, cannot be governed in the prison according to the same 
principles, and with the same means as free persons. . . . whose desires are 
correct and whose actions are conformable to the law (p. 76). 

Since the prison in a sense existed apart from society, it operated under 
different goals from those of a “free society.” They noted that, “the penitentiary 
system was severe in contrast to the ‘larger society’ which gives the example of 
extended liberty,” while, “the prisons of the country offer a spectacle of the 
most complete despotism” (de Beaumont and de Tocqueville, 1964:79). It would 
be inconsistent to conclude that the despotism of the prison was viewed as unfet¬ 
tered, for one of the contrasts emphasized between the American and French 
systems of punishment was the function of public opinion in setting the limits 
for policies and practices for the control of prisoners (Jacobs, 1980:18). 

C. Legacy of the Penitentiary to American Corrections 

In a generic sense the historical dimensions of the correctional process was clearly 
set in the first half of the 19th century. Elam Lynds, the superintendent of Auburn, 
and his disciple, Robert Wiltse, from Sing Sing, were the creators of the ‘ ‘calcu¬ 
lated humiliation.” One of their persistent contributions was the “lockstep,” a 



Evolution of the Correctional Process 


253 


tactic designed to enforce the “rule of silence” while moving large groups of 
men about the prison. This version of the military step added a shuffle to detract 
from the dignity of prisoners who marched with heads turned to the right and 
kept their left hands on the shoulder of the prisoner in front. The lockstep, as a 
means of control, lasted into the 1930s, some years after the rule of silence had 
withered away (Fogel, 1975:2-24, 73). 

The basic skills required to maintain control of the prison and prisoners in 
the era of the penitentiary were the use of the whip and the rifle in the early days 
at Sing Sing when there were no walls. In this way the keeper enforced the rule 
of silence and the lockstep in his task of controlling prisoners. A statement by 
the early warden of Sing Sing, Robert Wiltse, indicates the repressive form of 
control required by prison administrators. He stated, “The best prison is that 
which the inmates find the worst” (Lewis, 1965:142). 

Efforts to enforce the rule of silence were not entirely successful, yet its 
enforcement had the effect of requiring constant vigilance by line officers. When 
violators were identified, the warden ordered them whipped. During an 11-month 
period in 1845 at Auburn, there were over 17 whippings administered for viola¬ 
tions of the rule of silence. Administrators were not content to assign staff the 
task of control only in the area of speech, for guards were expected to prevent 
masturbation by the convicts. This was necessary because masturbation was be¬ 
lieved to be the cause of much of the insanity that occurred in prisons at that 
time (Lewis, 1965:131-133). 

In the 1830s, when de Beaumont and de Tocqueville observed American 
penitentiaries, use of corporal punishment was widespread. The coercive means 
of control, employed in prisons and on prisoners, says a lot about the moral status 
of the prisoner in American society at that time. It is well known that such means 
were employed on a greater scale in the decades that followed, and perhaps a 
revulsion towards such practices aided the reforms of the post-Civil war era, 
summarized below. Reliance on such coercive measures was to taper off due to 
legal changes in the period following World War II. Two landmark Supreme 
Court decisions, Talley v. Stephens (247 F. Supp 683, ED Ark. 1965) and Jackson 
v. Bishop (404 F 2d, 8 Cir. 1968) ruled that use of the whip to maintain discipline 
violated the Eighth Amendment’s prohibition against cruel and unusual punish¬ 
ment. 


II. THE PROGRESSIVE ERA AND CHANGE: THE 
NATIONAL PRISON ASSOCIATION AND THE 
“NEW PENOLOGY” 

The Progressive era of the 1890s was created and driven by the numerous currents 
of social reform that swept the country after the Civil War. Consistent with the 



254 


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notion that corrections do not exist in a social vacuum, reform of the penitentiary 
system was to become a significant foci of this reform momentum. 

A. The Cincinnati Convention Organizes the National 
Prison Association 

In October, 1870, leaders of various correctional organizations gathered in Cin¬ 
cinnati. This meeting included penal reformers, penologists, and practitioners, 
many of whom were disillusioned with the flawed penitentiary system. To these 
participants it seemed that neither deterrence nor reform had been achieved by 
the Auburn-type prison. They were inspired by reports of the work of Sir Walter 
Crofton and Captain Alexander Maconochie. who had employed the mark system 
while governor of the British penal colony on Norfolk Island. In the mark system, 
convicts could earn freedom by hard work and good behavior. Crofton had suc¬ 
cessfully incorporated these concepts into what he termed the ‘ ‘indeterminate’ ’ 
system in Irish prisons. An address by Zebulon Brockway urged the adoption of 
these reforms. Another address by Rev. James Wadsworth argued that all future 
reforms depended on the transformation of the guards into trained professionals 
(Fogel, 1975:31). 

The National Prison Association was organized by this conference and is¬ 
sued a pledge that embraced many of the ideas of Manconochie and Crofton. It 
stated, inter alia, that: 

Crime is a moral disease. . . . punishment is the remedy. . . . punishment is 
directed not only to the crime but to the criminal. . . . The supreme aim of 
prison discipline in the reformation of criminals, not the infliction of vindic¬ 
tive suffering.. .. The progressive classification of prisoners, based on merit, 
and not on arbitrary principle as age, crime . . . should be established . . . 

The prisoner’s destiny, during his incarceration should be placed measurably 
in his hands. . . . Premptory sentences ought to be replaced by those of 
indeterminate duration ... sentences ought to be replaced by those of indeter¬ 
minate duration . . . sentences limited only by satisfactory proof of should 
be substituted for those measured by mere lapse of time” (Transactions of 
the National Congress on Prison and Reformatory Discipline, Albany, 1871. 
Reprinted by the American Correctional Association, October, 1970. pp. 

1-8. See also Fogel, 1975:32). 

This statement of principles embodied what came to be known, rather opti¬ 
mistically, as the new penology. The adoption of such innovations was initially 
restricted, however, to younger first offenders. The first reformatory opened in 
1876, in Elmira, New York, administered by Zebulon Brockway. Over the next 
quarter century it was the model for reformatories built in over a dozen states. 
Its program differed, at least in intent from the penitentiary, since it confined 
only first-time offenders between the ages of 16 and 30. It was also an approxima- 



Evolution of the Correctional Process 


255 


tion of the principle of indeterminate sentence. That is, inmates were classified 
or divided into three levels. As they advanced based oil their good conduct, they 
might be paroled (Barnes, 1972:146). The reformatory was presumed to have an 
advantage over the Auburn system in that the length of the sentence roughly 
depended on the observation and evaluation of one’s progress by the line staff. 
Morever, reformation was to be stressed rather than retaliation or deterrence. 

B. Minimal Effect of Progressive Era Reform on 
Adult Corrections 

These reforms had little immediate effect on the majority of prisoners since they 
were not introduced into the adult prison system until the second decade of the 
20th century. Moreover, in those states that originally established the reforma¬ 
tory, there was great variation ‘ ‘from benevolent despotism, in the best, to tyran¬ 
nical cruelty in the worst” (Barnes, 1972:147). The traditional prison architecture 
remained fortress-like, yet more importantly, the orientation of the staff remained 
virtually the same. Indeed, discipline remained so severe that an official at Elmira 
boasted to Barnes that ‘ ‘young criminals begged the judges to send them to Au¬ 
burn instead of Elmira” (Barnes, 1972:148). 

It seems that the rhetoric of individual treatment, as the centerpiece of the 
new penology, did not mean that a “liberating reformatory” had become a re¬ 
placement for the brutal penitentiary tradition. Indeed, Johnson, in his recent 
study contends that the coercive social control policies instituted by Brockway 
created a “kind of scientific penitentiary” (Johnson, 1987:41), for control was 
only altered slightly in form, yet the substance remained intact. Likewise Piscotta 
notes that the orderly demeanor of inmates observed by visitors and attributed 
to the effectiveness of the Elmira system “was largely the result of fear” (1983: 
662-663). 

One facet of the new penology, generally attributed to the reformatory 
movement that was to persist and have an impact on the system over the next 75 
years, was the indeterminate sentence linked with parole. Brockway is reported as 
having noted that “parole is a more effective means of control than the whip” 
(Fogel, 1975:35). 

Custody and control still persisted as the central concern of line staff. How¬ 
ever, the gradual introduction of educational programs, basic and vocational, and 
the introduction of law libraries and recreational programs modified and comple¬ 
mented control. In their everyday contact with prisoners, prison workers were 
aware that an assortment of programs and personnel were becoming an aspect 
of their environment. Chaplains and other religious enthusiasts also became cer¬ 
tain theirs was the key to reform. Then came the industrialists, educators, psychol¬ 
ogists, and case workers. All these categories held claims, which might have been 
exaggerations, and these may have confused administrators as well as guards. 



256 


Wickman and Kumar 


The latter perceived these reforms as having contributed to the complexity of 
their task, for certainly their control of the prisoners had diminished, since discre¬ 
tionary authority related to such programs affected the custodial mission. 

A case in point was indeterminate sentencing, formally established in New 
York at the Elmira Reformatory, where it was linked to formal parole in 1876. 
The idea of the indeterminate sentence employed the carrot and stick: the length 
of the offender’s punishment could be determined by behavior after sentencing— 
while incarcerated—as much as by the offense for which he had been sentenced. 

As noted above in the often quoted comment by the first warden of Elmira 
Reformatory, parole served as a viable, albeit indirect means for the control of 
prisoners. However, parole as employed in the United States differed qualitatively 
from the British system developed by Crofton and Maconochie. In that system 
offenders earned early release by following an established set of specific rules 
beginning at the time of their initial incarceration. In most American prisons, 
until the 1920s, convicts might be notified once the time for early release ap¬ 
proached, and the warden’s staff would transmit to the warden their evaluation 
of the prisoner in terms of his general behavior while in the prison. If the prison¬ 
er’s behavior seemed consistent with the administrative staff’s expectations, a 
positive recommendation might be given, and the warden could parole him. Natu¬ 
rally, a negative report could have the reverse result. 

This system was formalized after the establishment of statewide Parole 
Boards in the 1920s. This more formal, bureaucratic parole process became a 
point of contention often noted by convicts, as well as other advocates of prison 
reform. For example, reform of parole was one of the demands made by the 
inmate leaders of the rebellion at Attica Prison in 1971. The convict leaders based 
their demand on a then-current study that had found that the parole interview— 
on which a decision for or against parole of the prisoner was based—lasted an 
average of 15 minutes (Shover, 1979:205-207; see also Rothman, 1980:73-77, 
183). 


III. THE VARIED EVOLUTION OF CORRECTIONS IN 

THE 20TH CENTURY: DRIVEN BY BOTH CONSCIENCE 
AND CONVENIENCE 

The historical fact remains that the reforms (the focus of concern of the reformers 
during the last quarter of the 19th century) did not have a significant effect on 
the correctional process until the era after World War II. 

Despite lip service paid to noninstitutional alternatives in lieu of penal sen¬ 
tences, a heavy reliance on institutional sanctions continued at the turn of the 
century. This continued reliance on such sanctions was rationalized, since it was 
believed necessary due to the fact that the prison population had increased by 



Evolution of the Correctional Process 


257 


62% between 1870 and 1904. As Rothman (1981:143-158) aptly notes, “con¬ 
science,” which had been the impetus of reform in the early Progressive era, 
was to be displaced by the “convenience" of warehousing the growing number 
of “less amenable” offenders, while the more amenable became candidates for 
the progressive programs of parole and probation. Nevertheless, prison staff re¬ 
mained concerned; reformative goals and related programs were about to replace 
the traditional emphasis on security and control. Their concern was misplaced 
for treatment programs were generally absent in the Big House, the type of prison 
that emerged at the turn of the century. The role of line staff did, however, begin 
to take on new dimensions since efforts to remove discipline based on violence 
and hard labor were among the few lasting reforms of this phase of the Progres¬ 
sive Era. 

A. The “Big House” and a Social Order of Convenience 

The Big House emerged and spread into nearly every state outside the South. 
As an embodiment of a multifaceted means of punishment, as well as a type 
of prison architecture, it captured the attention of the general public as well as 
criminologists. Although it has, with the exception of a few residual features, 
disappeared over the past three or four decades, the Big House became the domi¬ 
nant prison in the first half of the 20th century. It had, as Irwin (1980:1-16) 
contends, generated images and illusions with considerable assistance from Hol¬ 
lywood films depicting life in the Big House. 

These images and illusions linger on, and blur one’s concept of the prison 
types that have succeeded the Big House. John Irwin (1980:1-36), who has 
“done time” as a youth in California prisons and is sensitive to aspects of the 
history of prisons as punishment systems, has sketched a word picture of the Big 
House in his recent book (1980). His verbal description encompasses some of 
the features we have inadvertently come to think of as characteristic of a prison 
(1980:3-8). 

The Big House was a walled prison, composed of large cell blocks made 
up of three or more tiers of cells, each of which housed one or two prisoners. 
Typically one such prison held about 2,500 prisoners. Often such prisons had 
been constructed over several decades so they included a mix of both old and 
new cell blocks. 

Donald Clemmer studied Menard prison in the 1930s and Irwin summarizes 
his description of an older cell block at that institution. He characterized the cell 
block as a miserable domicile in which the over 400 toilet buckets, even though 
they were disinfected daily, gave off a putrid odor. The ventilating system was 
inadequate and the small windows were kept shut in cold weather for the comfort 
of the guards. The smell from over 800 men, who infrequently bathed, gave an 
added pungency to the stuffy atmosphere. The weak light from 25 watt bulbs 



258 


Wickman and Kumar 


provided little more than a yellowish gloom, and reading was difficult. One gets 
the impression of caged animals in cramped quarters (Clemmer, 1958:73-74; 
see also Irwin, 1980:3-4). This type of prison came into prominence during a 
significant phase in the history of American corrections, early in this century, at 
the apogee of the Progressive Era and extended into the 1950s, and even later 
in some states. 

The humanitarian reforms of this era had successfully eliminated some of 
the more brutal practices of earlier prisons. There were efforts to encourage prison 
administrators to introduce more humane forms of discipline, institute systemic 
diagnostic testing and classification procedures, improve educational programs, 
abolish hard labor, and, in general, create a prison that was more like society on 
the outside than the penitentiary or even the reformatory (Rothman, 1980:118; 
Irwin, 1980:2-3). Yet as Rothman cautions, these changes were piecemeal and 
consistent with innovations rather than reform as there was great disparity be¬ 
tween rhetoric and reality. It would be more correct to typify Big Houses as 
prisons with some of these progressive programs rather than as progressive pris¬ 
ons (Rothman, 1980:128). 

Even in those states where the Big House was prevalent there were residuals 
from an earlier era. For example the “silent system” persisted until the 1940s 
in many prisons. Nevertheless, in most prisons outside the South, prisoners were 
allowed to wear more ordinary clothing, mingle and converse freely in the yard 
several hours a day, have visits two to five times a month, and were relatively 
free from corporal punishment. 

By the mid-1920s the classification procedures instituted in many state pris¬ 
ons meant a time of isolation or segregation during which prisoners underwent a 
process that involved medical and various psychological examinations to evaluate 
intelligence, adjustment, and other factors. These procedures and the educational 
and training programs they assumed were existent meant that numbers of psychia¬ 
trists, psychologists, and other professionals began to join the prison staff for the 
first time. Yet as Rothman notes (1980:133-134), the ratio of professionals to 
convicts was such as to be no more than a symbolic presence. 

The one reform that had widespread support from prison administrators, 
line staff as well as reformers, was a prison labor system that might produce 
income sufficient to cover the cost of maintenance of the inmates. Indeed the 
New York Investigatory Committee concluded its report with the statement, 
“Work is ... the foundation around which every activity evolves in .. . prison” 
(quoted in Rothman. 1980:126). 

The Big House was significant then, for the legendary images of the prison 
it projected, yet there was an inaccurate aura of continuity to the type. This made 
it difficult to gain an accurate perception of prison types that succeeded it. These 
illusions were, in part, constructed and perpetuated by sociologists who had been 
involved in studies of the prison by the 1930s. There was a profusion of such 



Evolution of the Correctional Process 


259 


studies reported in the 1940s to the 1960s. They included, among others, studies 
by Schrag (1944), Sykes (1958), and Sykes and Messinger (1960). In his study 
of a New Jersey State Prison, Sykes (1958) employed data from the earlier studies 
to portray the prison as distinct from other social institutions. The distinguished 
sociologists who joined Sykes and Messinger to author the Theoretical Studies in 
the Social Organization of the Prison (1960) lent their support to this functionalist 
interpretation. In the view of these scholars, the accommodative social order was 
explained by the corrupt social arrangement between inmate leaders and prison 
administrators. This perspective held that the uniqueness of the prison meant that 
each new prisoner—the “fish”—who came into the prison found it necessary, 
as it were, to leave his former identity at the prison gate. These theorists then 
assumed that the prison was unique because of two separate problems; those 
confronted by the prisoners and those confronted by the administration. Both the 
“keepers” and the “kept” found it necessary to make “accommodations,” that 
is, to make unique adjustments to the totally unique world of the prison. Out of 
this accommodative situation there emerged a unique society, the “prison 
world,’ ’ which lacked any resemblance to the society that created it. It was further 
assumed that all prisons had the same system problems and so developed the 
same type of social system. This obscured the considerable variation that existed 
between prisons, and within them. Indeed similarities were also overlooked since 
they were doubtless due to external social influences that the accommodative 
perspective tended to ignore (Irwin: 1980:32-34). 

B. The “New Penology” in the Progressive Era After 
World War II 

By the 1950s prisons were transformed from the Big House to correctional institu¬ 
tions. The emergence of the correctional institution should be viewed in relation 
to the various social changes that occurred in the United States. The nation now 
was an urbanized affluent society in where many social issues demanded atten¬ 
tion, not the least of which was a concern with the apparent increase in crime. 

The new group of innovative specialists in penology were convinced that 
new ideas in social sciences could be employed to develop a theory of criminol¬ 
ogy, based on the premise that the causes of crime could be identified in the 
individual or in social forces in the environment. These “new” penologists, in¬ 
formed by ideas from the social sciences, found support for the conclusion that 
the basic goal of prisons should be rehabilitation. The “rehabilitative ideal” was 
to become the main emphasis, at least rhetorically, of those penologists active 
in the establishment of the correctional institutions that began to replace the Big 
House, during and following the 1950s (Irwin, 1980:39-40). 

The prisons that approximated these rehabilitative ideas were organized in 
terms of three procedures: the indeterminate sentence, classification, and treat- 



260 


Wickman and Kumar 


ment. Indeterminate sentencing now relied on a high degree of indeterminacy, 
which required greater reliance on parole boards to set minimum and maximum 
limits to the sentence. That is, parole boards were given this discretionary power 
in the assumption that the offender would be released when rehabilitated. In the¬ 
ory, classification in the correctional institution meant greater reliance on profes¬ 
sionals to evaluate and classify the new prisoners in order to plan an appropriate 
program; subsequently they would be assigned to a prison suited to their individ¬ 
ual needs. 

In practice, the first procedure typically meant that parole boards exercised 
their power to enforce a degree of conformity to prison rules and routine. How¬ 
ever, classification committees tended to base their decisions on the convenience 
of custody and discipline, with treatment needs given a lower priority. So, if a 
new inmate were classified as a security risk and in need of psychiatric care, he 
would be assigned to a maximum security institution even though there were no 
psychiatric services available in maximum security prisons (Irwin, 1980:40-44). 
Neither of these procedures was fundamentally different, except in degree, from 
reforms of the late 19th century institution. In its early phase the correctional 
institution was not generally as effective as in the later phase. What really existed 
was ‘ ‘care and treatment’' added on to a prison organization dominated by custo¬ 
dial staff. For early treatment, staff made decisions in terms of custodial priorities. 
That is, classification decisions noted above were made by committees comprised 
of both treatment and security staff. When the early programs were critically 
attacked in the late 1960s and fell into subsequent disrepute, the treatment pro¬ 
grams underwent a revision (Irwin, 1980:44, 129-130). 

The later phase of the treatment programs, according to several scholars, 
emphasized a more “active conception” that was influenced by the civil rights 
movement and its view of the individual’s right to treatment. It is Irwin’s con¬ 
tention that some members of the treatment staff were inspired by a small cadre 
of newly hired yet adventurous individuals to become more innovative and asser¬ 
tive in their approach to treatment. Changes both inside and outside the walls, 
he argues, had an impact on the vigor in which treatment programs were adminis¬ 
tered in the late 1960s (1980:130-131). 

Conflict and the struggle for “turf” between custody and treatment staff 
that emerged during the later, more active, phase of the correctional institution 
were more intense than that in the early phase. Custody staff resented the new 
importance of treatment professionals. They also disagreed on the need for strict 
adherence to rales, as contrasted with decisions based on the situation and the 
individual. A formal organizational change that resulted was the creation of two 
separate administrative divisions: for custody (i.e., security) and for treatment. 
This bureaucratic arrangement formalized the endemic conflict between the cus¬ 
tody and treatment staff. Now the warden had to negotiate differences between 
the two divisions of his staff. Even though he might pay lip service to the latest 



Evolution of the Correctional Process 


261 


principles enunciated by the American Corrections Association (“Today the prison 
serves most effectively ... when the major emphasis is on rehabilitation” [Wick- 
man and Whitten, 1980:333]), nevertheless this overt commitment was merely 
the means of justifying any priority given to custody (Irwin, 1980:131-132). 

C. The Effects of Correctional Institution Treatment 
Programs: Did Anything Work? 

Until the mid-1970s it seemed reasonably clear that rehabilitation had been as¬ 
sumed to be the major goal of the penal sanction or sentence. In theory at least, 
it assumed the possibility of punishment and re-education or rehabilitation oc¬ 
curring simultaneously. Yet the results of a number of evaluation studies began to 
report uneven, inconsistent, and inconclusive data on a wide variety of treatment 
programs: educational programs (both academic and vocational); individual ther¬ 
apy (treatment); group therapy (treatment); behavior modification; work release; 
community-based treatment (probation and parole); and half-way houses. 

Sentencing and the effectiveness of punishment were summed up by the 
British criminologist Nigel Walker when he suggested that the common assump¬ 
tion relative to the right treatment can be discovered by a diagnostic process 
based on thinking in terms of the medical model. An analogy from medicine 
assumes that criminal behavior was comparable to a physical illness. Once the 
cause of the offender’s deviance is diagnosed, the remedy is apparent and may 
be applied. This has been acknowledged as unworkable and a fallacy (quoted in 
Wickman and Whitten, 1980:552). Norman Bishop, Director of Research and 
Development of the Swedish Correctional Administration, noted in a conversa¬ 
tion with the one of the authors in 1974: “the danger of the treatment model to 
the system is that good programs will be discarded because it cannot be proved 
that they are effective.” 


IV. THE JUSTICE MODEL, OR BACK TO THE FUTURE OF 
ANOTHER “NEW PENOLOGY?” 

In the face of lack of evidence for the effectiveness of institutional corrections, 
the late 1970s witnessed a panoply of writers who advocated variations on Her¬ 
bert Packer’s “Due Processes Model” (1968:149-239). A truncated sample of 
these would include the American Friends Committee’s cogent argument for the 
“Abolition of Prisons as They Now Are” (1970: passim). And a slightly less 
strident, yet widely read work employed as a textbook by David Fogel, “We 
Are The Living Proof: The Justice Model for Corrections (1975:246-260, and 
275-276). In this extended treatise Fogel, a former Commissioner for Corrections 
argued for limitations on the discretion that operates in both sentencing and pa- 



262 


Wickman and Kumar 


role. The senior author joined this litany in 1980, when he wrote to advocate, 
‘ ‘a means of punishment based upon the just administration of justice throughout 
the entire process—from sentencing to the operation of the prison. ...” (Wick¬ 
man and Whitten, 1980:566). 

Where is the correctional process now? In what direction or directions is 
it tending? Is there an emergent New Penology? Is it really a New Penology or 
is it a new edition of old ideas in new terms? Is it an attempt to lend validity to 
new techniques that have produced a new rationale as well as a new vocabulary? 
Or is there a residual of the traditional within the organization and function of 
the new approaches to age old goals of retribution, incapacitation, rehabilitation, 
and deterrence? 

In their recent seminal article in Criminology, the official publication of 
the American Society of Criminology, Malcolm Feeley and Jonathan Simon 
(1992:449-474) contend that there is a significant reorientation underway in the 
United States. This change is so important that they term it a new penology and 
report that it equals a ‘‘new emergent language of penology.” This comprises 
shifts in three significant areas. 

First there are emerging discourses, the central aspect of which is the re¬ 
placement of a moral or clinical description of the offender with an actuarial 
language of probabilistic calculations and statistical distributions applied to 
groups (Feeley and Simon, 1992:452-454). 

Second, there are the formations of new objectives for the corrections sys¬ 
tem. These are not necessarily new to the system, but in some sense newly “sys¬ 
temic.” These are not about punishing or rehabilitating individuals, but are con¬ 
cerned with the rationality of the managerial processes, hot individual behavior 
or community organization. Crime is to be made tolerable rather than eliminated. 
Thus, there is less interest in recidivism: the emphasis has shifted to a normative 
connotation that the major objective is the reintegration of offenders into the 
community (Feeley and Simon, 455-457). 

Third, the new techniques focus on offenders as a group rather than the 
traditional concern for the individual or creation of equity. Expectations are low¬ 
ered as evidenced in the development of cost-effective forms of custody and 
control in innovative technologies to identify and classify risk. Nor are these 
forms of control grounded in intentions to rehabilitate, reintegrate, provide em¬ 
ployment, or other objectives. Rather they are justified in terms that denote varia¬ 
tion of detention depending on assessed risks (Feeley and Simon, 457-458). 

The correctional practices that emerge from these changes present a kind 
of “custodial continuum.” Unlike the “correctional continuum” of the 1960s, 
this new custodial continuum does not design penal measures for the specific 
needs of the individual or the community. Rather individuals are classified into 
groups according to the degree of control warranted by their risk profiles (Feeley 
and Simon, 465-467). 



Evolution of the Correctional Process 


263 


At one extreme the prison provides maximum security at a high cost for 
those who pose the greatest risks; and at the other, probation provides low-cost 
surveillance for low-risk offenders. In between there is an expanding range of 
intermediate supervisory and surveillance techniques. New techniques such as 
electronic monitoring, boot camps, intensive supervised probation, parole, and 
drug and polygraph testing focus on offenders as aggregates in lieu of more tradi¬ 
tional techniques (e.g., counseling, and treatment intended to facilitate rehabilita¬ 
tion and reintegration) (Bayens et al., 1998:51-52). 

Within most Intensive Supervised Probation (ISP) programs, risk and needs 
assessment sorts offenders into levels for supervision: high, close, intermediate, 
and reduced supervision (Bayens et al., 1998:53). There is, however, some argu¬ 
ment as to whether probation and parole have undergone transformation in the 
last 20 years or if closer scrutiny might indicate that these community services 
made only “ceremonial responses to changes in their institutional environment.” 
In other words as penal ideology and practice became more conservative, they 
had to either change their method of operation or cease to exist. Data from a 
recent research report on the day-to-day work of ISP officers suggests that the 
“new penology” in at least one study is more rhetoric than reality. Moreover, 
the new penology provides maximum security at high costs for those who pose 
the greatest risks, and, at the other extreme, low-cost surveillance for low-risk 
offenders. In between there is an expanding range of intermediate supervisory 
and surveillance techniques (Bayens et al., 1998:52-53). 

Questions about the effect of the new penology as a means of preparing 
offenders for reintegration into the community, as well as the effect of the new 
penology on the size of the prison population, relate to the impact of the so- 
called New Penology on the nation’s prison population. If it is indeed new or is 
a different way of conceiving of the functions of criminal sanctions, it may have 
contributed to the rise in prison populations over the past 10 years. Indeed, Feeley 
and Simon contend that it is both a cause and an effect of the increased prison 
population during the 1990s. 

The authors’ conclusion is based on the assumption that ‘ ‘external’ ’ condi¬ 
tions have placed pressures on criminal justice organizations that have caused 
them to adapt in many ways. For instance, it was “more convenient to warehouse 
prisoners due to an increase of only 62% in the population of prisons.” However, 
in the 1990s, under the guise of the New Penology, even though there has been 
an increase of nearly 97 percent per 100,000 in prison population since 1985, 
apparently there are those who view this as an urgent demand for the construction 
of more prisons, rather than considering the need to examine the possibility of 
a greater reliance on noninstitutional alternative sentences. That is, since federal 
and state facilities now operate at 114-126 percent of capacity (Bureau of Justice 
Statistics, 1999:1-3), there seems to be the acceptance of a foregone conclusion 
that more and more prisons are necessary. These adaptations have, however, been 



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so thorough that they have led to a significant reconceptualization of penology, 
which in turn has institutionalized this adaptative behavior. If this analysis is 
valid and descriptive of what is occurring, has the evolution of the correctional 
process indeed come full circle? Are we back to the New Penology of the Cincin¬ 
nati Convention of 1870 in which meaningful reforms, that is “conscience,” is 
to be once more replaced by “convenience,” and reform by “word magic?” 

REFERENCES 

Allen, F. F. (1981). The Decline of the Rehabilitative Idea, Yale University Press, New 
Haven. 

American Friends Service Committee. (1971). A Report on Crime and Punishment in 
America. (Hill & Wang. New York.) 

Barnes, H. E. (1972). The Story of Punishment, 2nd ed., Patterson Smith, Montclair, N.J. 
Barnes, H. E., and Teethers, N. (1943). New Horizons in Criminology, Prentice-Hall, New 
York. 

Bayens, G. J., Manske, M. W., and Smykla, J. O. (1998). The impact of the ‘New Penol¬ 
ogy’ on ISP, Criminal Justice Rev. 23: 51-62. 

Bureau of Justice Statistics (1999). Prisoners in 1998, U.S. Department of Justice, Wash¬ 
ington, D.C. 

Chenault, P. (1951). Education, in Contemporary Corrections, P. Tappan, ed., McGraw- 
Hill Publishing Co., New York. 

Clemmer, D. (1958). The Prison Community, Holt, Rinehart & Winston, New York. 
Cressey. D. R. (1958). The nature and effectiveness of correctional techniques, Law 
Contemp. Problems 23: 754-771. 

Cressey, D. R. (1961). The Prison: Studies in Institutional Organizations and Change, 
Holt, Rinehart & Winston, New York. 

Cressey, D. R. (1968). Contradictory directives in complex organizations: The case of the 
prison, L. Hazelrigg, ed.. Prison Within Society, Anchor Books, Garden City, NY. 
Cressey, D. R. (1973). Adult felons in prison, Prisoners in America, L. E. Ohlin, ed., 
Prentice-Hall, Englewood Cliffs, N.J. 

Cressey, D. R. (1977). Prison organizations, The Sociology of Corrections, R. G. Leger 
and J. R. Stratton, eds., John Wiley & Sons, New York. 

Crouch, B. M. (1980). The guard in a changing world, in The Keepers: Prison Guards 
and Contemporaiy Corrections, B. M. Crouch, ed., Charles Thomas Publisher, 
Springfield, IL. 

De Beaumont, G„ and de Tocqueville, A. (1964). On the Penitentiary System in the United 
States and Its Application in France, Southern Illinois Univ. Press, Carbondale, IL. 
Doyle, J. M. (1992). It's the Third World down there!: The colonialist vocation and Ameri¬ 
can criminal justice. Harvard Civil Rights Civil Liberties Law Rev. 27: 71-126. 
Duffee, D. (1980). Correctional Management: Change and Control in Correctional Orga¬ 
nizations, Prentice-Hall, Englewood Cliffs, NJ. 

Feeley, M„ and Simon, J. (1992). The new penology: Notes on the emerging strategy of 
corrections. Criminology 30: 449-474. 



Evolution of the Correctional Process 


265 


Flanagan, J. (1977). Crisis in prison populations, in Correctional Institutions , 2nd ed., 
R. Carter. D. Glaser, and L. Wilkins, eds., J.B. Lippincott, New York. 

Fogel, D. (1975). We Are the Living Proof: The Justice Model for Corrections, The 
W. FI. Anderson Company, Cincinnati, OFF 

Fox, J. G. (1982). Organizational and Racial Conflict in Maximum Security Prisons, Lex¬ 
ington Books, Lexington, MA. 

Friedman, L. M. (1993). Crime and Punishment in American History, Basic Books, New 
York. 

Galtung, J. (1961). Prison: The organization of dilemma, in The Prison: Studies in Institu¬ 
tional Organization and Change, D. R. Cressey, ed., Holt, Rinehart & Winston, 
New York. 

Goffman, E. (1961). On the characteristics of total institutions: The inmate world, in The 
Prison: Studies in Institutional Organization and Change, D. R. Cressey, ed. Holt, 
Rinehart & Winston. New York. 

Gordon, D. R. (1991). The Justice Juggernaut: Fighting Street Crime, Controlling Citi¬ 
zens, Rutgers Univ. Press, New Brunswick. 

Gottfredson, S. D. (1983-1984). Institutional responses to overcrowding. Rev. Law Soc. 
Change 12(1): 259-274. 

Gottfredson, S. D., and McConville, S. (eds.). (1987). America’s Correctional Crisis: 
Prison Populations and Public Policy. Greenwood Press. New York. 

Haney, C., Banks, C. and Zimbardo, P. (1973). Interpersonal dynamics in a simulated 
prison, Int. J. Criminol. Penol. 1: 69-97. 

Hawkins, G. (1976). The Prison: Policy & Practice, Univ. of Chicago Press, Chicago. 

Ignatieff, M. (1978). A Just Measure of Pain: The Peniteniary in the Industrial Revolution, 
1750-1850, Macmillan, London. 

Irwin, J. (1977). The changing structure of the men’s prisons, Corrections Punishment, 
Sage Publications, Beverly Hills, CA. 

Irwin, J. (1980). Prisons in Turmoil, Little, Brown and Co., Boston. 

Irwin, J. (1985). The Jail: Managing the Underclass in American Society, Univ. of Califor¬ 
nia Press, Berkley. 

Jacobs, J. B. (1977). The Penitentiary in Mass Society, Univ. of Chicago Press, Chicago. 

Jacobs. J. B. (1980). The prisons rights movement and its impacts, 1960-1980. in Crime 
and Justice: An Annual Review of Research, N. Morris and M. Tonry, eds., vol. 
2., The Univ. of Chicago Press, Chicago: pp. 429-470. 

Jacobs, J. B. (1983). The New Perspectives on Prisons and Imprisonment, Cornell Univ. 
Press, Ithaca. NY. 

Jacobs, J. B., and Retsky, H. C. (1977). Prison guard, in The Sociology of Corrections, 
R. G. Leger, and J. R. Stratton, eds., John Wiley & Sons, New York. 

Johnson, R. (1987). Hard Time: Understanding and Reforming Prison, Brooks/Cole Pub¬ 
lishing Co., Monterey, CA. 

Korni, S. K. (1995). Corrections: Renewed interest, Int. Med. J. 2(1): 7-9. 

Lewis, D. (1965). Newgate to Dannemora, Cornell Univ. Press, Ithaca, NY. 

Lipton. D.. Martinson, R.. and Wilkes, J. (1975). The Effectiveness of Correctional Treat¬ 
ments: A Survey of Treatment Evaluations, Praeger Publications, New York. 

Martinson, R. (1974). What works? Questions and answers about reform, Public Interest 
22: 35. 



266 


Wickman and Kumar 


McKendric, C. (1951). Custody and discipline, in Contemporary Corrections, P. Tappan, 
ed., McGraw-Hill Book Co. Inc., New York. 

Morse, W. (1973). The Attorney General’s survey of release procedures, in Penology: 
The Evaluation of Corrections in America, G. C. Killinger and P. F. Cromwell, Jr. 
eds.. West Publishing Co., St. Paul, MN. 

Packer, H. L. (1968). The Limits of the Criminal Sanction. Stanford University Press, pp 
149-239. 

Pfohl, S. J. (1985). Images of Deviance and Social Control: A Sociological History, 
McGraw-Hill Book Company, New York. 

Philliber, S. (1987). Thy brother’s keeper: A review of the literature on correctional offi¬ 
cers, Justice Q. 4(1): 9-38. 

Piscotta, A. W. (1983). Scientific reform: The New Penology at Elmira, 1876-1900, Crime 
Delinguency 29(4): 613-630. 

President’s Commission on Law Enforcement and the Administration of Justice (1967). 
The Challenge of Crime in a Free Society U.S. Government Printing Office, Wash¬ 
ington D.C. 

Reiman, H. (1937). Socialization in the prison, in Proceedings of the ’ 76 Annual Congress 
of the American Prison Association, pp. 151-155. 

Rothman, D. J. (1971). The Discovery of the Asylum: Social Order and Disorder in the 
New Republic, Little, Brown and Co., Boston. 

Rothman, D. J. (1980). Decarcerating prisoners and patients, Civil Liberties Rev. 1 : 8-30. 

Rothman, D. J. (1981). Conscience and Convenience: The Asylum and its Alternatives in 
Progressive America, Little, Brown and Company, Boston. 

Schrag, C. (1977). Some foundations for a theory of corrections, in Correctional Institu¬ 
tions, 2nd ed., R. Carter, D. Glaser, and L. Wilkins, eds., J. B. Lippincott Co., New 
York. 

Shover, N. (1979). A Sociology of American Corrections, Dorsey Press, Homewood, IL. 

Sykes, G. (1958). Society of Captives: A Study of Maximum Security Prisons, Princeton 
Univ. Press, Princeton, NJ. 

Sykes, G., and Messinger, S. (1960). Inmate social system. Theoretical Studies in the 
Social Organization of the Prison, Social Science Research Council; New York. 

Tappan, P. (ed.) (1951). Contemporary Corrections. McGraw-Hill Book Co., New York. 

Tannenbaum, F. (1922). Wall Shadows: A Study in American Prisons, Putnam, New 
York. 

The Official Report of the New York State Commission on Attica (1972). Bantam Books, 
New York. 

Theoretical Studies in the Social Organization of the Prison (1960). Social Science Re¬ 
search Council, New York. 

Thomas, J. E. (1972). The English Prison Officer Since 1850, Routledge & Kegan Paul, 
London. 

Wickman, P. (1986). The impact of Gates v. Collier on Mississippi corrections: Ambigu¬ 
ous effects of ambivalent compliance on prisoner’s rights and prison organization. 
Unpublished paper presented at the Annual Meeting of the American Society of 
Criminology, Atlanta, GA. 

Wickman, P. and Whitten, P. (1980). Criminology: Perspectives on Crime and Criminol¬ 
ogy, D.C. Heath & Co., Lexington, MA. 



Evolution of the Correctional Process 


267 


Wilkins, L. T. (1969). Evaluation of Penal Measures, Random House, New York. 

Wilkins, L. T. (1973). Crime and justice at the turn of the century, Ann. Am. Acad. Political 
Soc. Sci. 408: 13-29. 

Wilson, W. J. (1987). The Truly Disadvantaged: The Inner City, the Underclass and Pub¬ 
lic Policy, University of Chicago Press, Chicago. 

Zamble, E., and Porporino, F. J. (1988). Coping, Behavior and Adaptation in Prison In¬ 
mates, Springer-Verlag, New York. 

Zimring, F. and Hawkins, G. (1991). The Scale of Imprisonment, Univ. of Chicago Press, 
Chicago. 



This Page I nbentionally Left Blank 



15 

Probation 


Tammy A. King 

Youngstown State University, Youngstown, Ohio 


I. HISTORICAL DEVELOPMENT OF PROBATION 

Throughout the history of the United States, various methods have been devised 
to correct and/or punish criminal behavior. As the nation was formed, the English 
method of punishment was adopted; corporal punishment. Remembering that this 
nation was first settled by many individuals who sought religious freedom, it is 
not surprising to learn that they believed that if the human body was punished 
here on earth, the heavenly soul might be saved. This was a practice and philoso¬ 
phy of British tradition. Once the British colonies won their independence, the 
new nation began to reject traditions and practices of Britain. This desire to 
change and create a new identity of their own also affected the way in which 
transgressors were punished. 

Although there were jails during our colonial history, they were used pre¬ 
dominantly for pretrial detention and for offenders who committed minor of¬ 
fenses (Allen and Simonsen, 1995). The first state prison was opened in Con¬ 
necticut in 1773. The facility was an abandoned copper mine. Inmates lived 
underground in long mine shafts and the administrators were located in buildings 
outside the mine. It was not until 1790 that the United States established a peni¬ 
tentiary in Pennsylvania. 

The practice of incarcerating individuals has been challenged by reformers 
dating back to biblical times (Abadinsky, 1997). Release into the community, in 
lieu of incarceration, under the supervision of the state is called probation. Proba¬ 
tion in the United States dates back to the 19th century. The foundation for proba¬ 
tion in the United States was inspired by the concept of “judicial reprieve.” 
Judicial reprieves were used early in the English court system. An individual 


269 



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King 


given a judicial reprieve had a temporary suspension of the sentence for an appeal 
to the Crown for a pardon. Eventually, the judicial reprieve evolved into a sus¬ 
pended sentence and punishment was never imposed (Abadinsky, 1997). 

Although not allowed by law or statute, the practice of suspended sentenc¬ 
ing became widespread in the early 1800s in the United States; in Boston, Massa¬ 
chusetts, it was common as early as 1830. Legal issues soon arose. Judges were 
giving defendants second chances after a verdict of guilty was handed down. The 
State of New York’s use of a suspended sentence was challenged by litigation 
in 1894. It was determined that the legislative branch must grant this right to the 
criminal courts. In 1916 the federal courts were informed by the U.S. Supreme 
Court that judges could not make a discretionary decision to suspend a sentence. 
They also stated “that Congress could authorize the temporary or indefinite sus¬ 
pension of sentences—a predecessor to probation statutes” (Cromwell et al., as 
cited in Abadinsky, 1997). 

John Augustus has been credited with creating the practice of probation in 
the United States in 1841. Augustus believed in the humane treatment of offend¬ 
ers. Between the years of 1841 and 1858 John Augustus posted bail for almost 
2,000 offenders (Gesualdi, 1999). Augustus reported having rehabilitated 90% 
of his charges. For the “probationers” that Augustus supervised, he established 
conditions for them to follow. He expected that his probationers attend school 
and/or gain socially appropriate employment. Some of the women he assisted had 
been arrested for prostitution. These women were also expected to gain socially 
appropriate employment. 

If an individual had been arrested for drunkenness, Augustus would have 
the probationer promise not to drink. Augustus reported that more than 80% of 
these individuals eventually gained employment and never recidivated (commit¬ 
ted a new offense). Besides his dedication to helping individuals, Augustus ar¬ 
gued, and demonstrated, that corrections in the community was more effective 
than incarcerating individuals. 

During Augustus’ lifetime, the community was not typically viewed as a 
place for rehabilitation. The community was viewed as a place harboring “evil.” 
Evil can be described as social ills that cause one to be criminalistic or delinquent. 
It was in the community that one could be encouraged to drink or use drugs. It 
was in the community that people found “bad” people to encourage continual 
inappropriate behaviors. These negative ideas concerning the community’s in¬ 
fluence on criminal and delinquent behavior saw little change until the middle 
of the 20th century. 

Probation as a judicial policy began in Boston, Massachusetts, in 1878. 
This practice was adopted by the entire state of Massachusetts by 1880 and was 
adopted and utilized by all states by the late 1950s. During the 1950s and 1960s 
the idea that rehabilitation could occur in the community with appropriate super¬ 
vision and assistance became an acceptable hypothesis. This change in attitude 



Probation 


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reflected the social reform occurring in this nation during those decades. Another 
explanation for the growth of community-based corrections could be that many 
social reformers were becoming dissatisfied with the criminal justice system 
(Champion, 1998). The reasons that members of society were losing faith in the 
criminal justice system, including correctional practices, were numerous. Evi¬ 
dence was presented that the criminal justice system was discriminating against 
diverse cultural members and people who were economically deprived. Research 
also indicated that prisons and other correctional facilities were simply warehous¬ 
ing inmates; no rehabilitation was occurring. 

Besides the dissatisfaction with the criminal justice system contributing to 
a willingness to reevaluate the community as a place for rehabilitation, a new 
academic discipline was emerging: criminal justice. Criminal justice, as an aca¬ 
demic discipline, began to grow rapidly in the 1960s in an attempt to professional¬ 
ize individuals working in the system. Scientific examination of what works and 
what does not work in our effort to rehabilitate offenders occurred then and con¬ 
tinues today. 

Probation is now a common sentence used in the United States. Instead of 
being incarcerated, convicted offenders are supervised in the community. Rush 
and Torres (1998:140) define probation as “the conditional freedom granted by 
a judicial officer to an alleged or adjudged adult or juvenile offender, as long as 
the person meets certain conditions of behavior.’’ 

Probation’s goals upon its conception were to provide an offender with a 
second chance. Today probation seems to focus more on reintegration and main¬ 
taining community ties for offenders. Individuals who are sentenced to probation 
are also often ordered to remain in their home, except for specific periods of 
time. This type of sentence was introduced in Florida in 1984 and was called 
“house arrest” or “home confinement.” Many offenders are allowed to leave 
in order to maintain employment, attend school, religious functions, counseling, 
or other preapproved activities. Home confinement is a sentence usually given 
in conjunction with probation, but it can be a separate sanction. 

A person placed on home confinement/house arrest may be involved in 
several activities. The individual may have to pay restitution to victims, partici¬ 
pate in community service programs, wear electronic monitoring equipment (a 
device that allows one’s movement to monitored by electronic equipment and 
computer technology), submit to random drug and alcohol testing, or participate 
in other activities deemed necessary by the court (Mays and Winfree, 1998). 

Another type of intermediate sanction that may be given in conjunction 
with probation is participation in a day reporting center. Under this model, proba¬ 
tioners report to the center in order to participate in various programming, ser¬ 
vices, and/or activities. They are often required to call the day reporting center 
by phone throughout the day and they may be subject to random calls as well. 
Many probationers are also subjected to random drug testing. If probationers 



272 


King 


refuse, or fail, to report to the center, they may be charged with a violation and 
their sentences may be revoked, which can lead to incarceration. When offenders 
face revocation (i.e., return to a correctional facility), they are entitled to a hearing 
and an attorney. 


II. CURRENT STATE OF PROBATION 

Today probation focuses on rehabilitation, just desserts, and reintegration of of¬ 
fenders into the community. These goals are a challenge, to say the least. A 
person (if one supports sociological theories of crime) is criminalistic because 
of environment. In the very environment that helped shape negative behavior, 
probation officers are now attempting to use it to change the offender into a law- 
abiding citizen. 

The cost of keeping an individual incarcerated is high, not only financially 
but also emotionally, as society attempts to assist with the care of the incarcerated 
person’s dependents. It is estimated that it costs more than 25 billion dollars 
yearly to maintain and increase punishment efforts in the United States. In some 
states, such as Ohio, more money is budgeted for correctional efforts than for 
educating children. One way in which correctional costs can be decreased is the 
increased usage of community-based corrections, specifically probation. 

A. Statistics 

Probation is “a court-ordered disposition alternative through which an adjudi¬ 
cated offender is placed under the control, supervision and care of a probation 
field staff member in lieu of imprisonment, as long as the probationer meets 
certain standards of conduct” (American Correctional Association, 1994:67). 
Since 1980 prison and jail populations have grown by 172%, whereas probation 
and parole populations grew by 163% (American Correctional Association, 1994: 
67). In 1993 approximately 3.2% of all adult men and 0.6% of adult women in this 
country were sentenced to probation or granted parole (American Correctional 
Association, 1994:72). In 1995 Latessa and Allen (1999) estimated that 3,194,000 
adults were placed on probation. Other offenders were placed in jail (515,000 
adults), prison (1,073,000 adults), or on parole (768,000 adults). The numbers 
are all expected to grow in the new millennium. Today, based on the numbers 
presented, approximately two-thirds of the adults under correctional supervision 
are on probation (Petersilia, 1985; Byrne, 1990; Latessa and Allen, 1999). In an 
effort to understand better the magnitude of the number of people serving a proba¬ 
tion sentence, out of a city with a population of 100,000 people, approximately 
1,490 are on probation (Maguire and Pastore, 1995; Bureau of Justice Statistics, 
1996). 



Probation 


273 


B. Offenders on Probation 

According to Petersilia (1997) the majority of offenders placed on probation are 
there because they committed a felony offense (55%). Seventeen percent of the 
offenders on probation were intoxicated while driving (a misdemeanor). Twenty- 
six percent of the probationers committed a misdemeanor offense other than driv¬ 
ing under the influence. The majority of these offenders are men (79%). A large 
portion of the probationers are white (64%). 

C. Presentence Investigation 

Probation is the most common sentence given to felony offenders in the United 
States today (Petersilia and Turner, 1993). Prior to sentencing a person found 
guilty of an offense, the judge often requests that a presentence investigation 
(PSI) be conducted and the results written for review. The PSI is usually com¬ 
pleted by a probation officer. The PSI is primarily written for the purpose of 
providing information to the sentencing judge so that an appropriate sanction 
can be given to the convicted offender, but it can also provide insights for reha¬ 
bilitative efforts. 

The preparation of a PSI can be very time consuming because it contains 
information about the convicted offender’s life history. According to Champion 
(1998:93), the following data are included on a PSI: 

1. Name 

2. Address 

3. Prior record, including offenses and dates 

4. Date and place of birth 

5. Crime(s) or conviction offense and date of offense 

6. Offender’s version of conviction offense 

7. Offender’s employment history 

8. Offender’s known addiction to or dependency on drugs, alcohol, or 
controlled substances of any kind 

9. Statutory penalties for the conviction offense 

10. Marital status 

11. Personal and family data 

12. Name of spouse and children, if any 

13. Educational history 

14. Any special vocational training or specialized work experience 

15. Mental and/or emotional stability 

16. Military service, if any, and disposition 

17. Financial condition, including assets and liabilities 

18. Probation officer’s personal evaluation of offender 

19. Sentencing data 



274 


King 


20. Alternative plans made by defendant if placed on probation 

21. Physical description 

22. Prosecution version of conviction offense 

23. Victim impact statement prepared by victim, if any 

24. Codefendant information, if codefendant is involved 

25. Recommendation from probation officer about sentencing 

26. Name of prosecutor 

27. Name of defense attorney 

28. Presiding judge 

29. Jurisdiction in which offense occurred 

30. Case docket number and other identifying numbers (e.g.. Social Secu¬ 
rity, driver’s license, etc.) 

31. Plea 

32. Disposition or sentence 

33. Location of probation or custody 

It is estimated that probation officers complete more than 1 million PSI reports 
yearly in the United States (Champion, 1998:96). 


III. PROBATION OFFICERS AND 
THEIR RESPONSIBILITIES 

Once a person is placed on probation, a probation officer is assigned to supervise 
his or her movements in the community. However, supervision is becoming more 
difficult because probation officers have large caseloads that they are expected 
to supervise. The average caseload size, as reported by states, is approximately 
106 probationers (Mays and Winfree, 1998), but in more than 12 states the case¬ 
load size was more than 130 probationers. Some states reported caseload sizes 
of 200 or more probationers. Keeping track of this large number of probationers 
is almost impossible. 

Prior to being placed on probation, the offenders must meet established 
conditions to remain in the community. These conditions often include, but are 
not limited to remaining in the jurisdiction, not associating with known felons, 
finding and/or maintaining employment, remaining drug free, and meeting any 
other lawful condition deemed necessary. Because of all these conditions, the 
probation officer must take on a dual role. The probation officer must attempt to 
help the offender rehabilitate while at the same time ensure that the offender is 
obeying the laws and the conditions of the sentence. Protecting society must be 
the top priority for the probation officer. Other roles are also integrated into the 
two mentioned. In an effort to complete these roles, the probation officer often 
acts as a mediator, fee collector, counselor, and service broker. 



Probation 


275 


The probation officer is often viewed by many as one who delivers services 
(Mays and Winfree, 1998) and acts as an advocate for the probationer. In order 
to do so, the probation officer must be aware of resources and programs available 
in the community as well as of the effectiveness and the cost for these services. 
If services are not available, suggestions should be made for needed programing 
and grant monies or other resources to bring the needed services to the commu¬ 
nity. 

When the probation officer makes the initial contact with the offender (in¬ 
take), the new offender assumes certain defined responsibilities. The offender 
must know when to meet with the probation officer. Needed information and 
forms must be collected and recorded. Conditions of the probation sentence must 
again be reviewed and the offender should sign a form indicating that the condi¬ 
tions are understood and agreed to. 

Information can be provided to the probationer in the form of a handout 
or booklet. The probation officer should remember that some individuals may 
not be able to read or may have problems comprehending what was read. Another 
problem that some individuals may have is the inability to remember important 
information. The probation officer may have to write such information on paper 
for the probationer, or make “reminder” phone calls to the probationer. 

A probation officer must also be able to assess the needs of the probationer 
and the potential risk from the probationer to society. The assessment process 
helps the probation officer determine the exact needs of the probationer. The 
probation officer will conduct an assessment, but additional information may be 
needed. For example, the probation officer may deem that a psychiatric or psycho¬ 
logical assessment is needed. Physical assessment, including assessment of drug 
and alcohol usage, may also be deemed necessary. It is imperative that detailed 
and accurate information be made available to ensure proper use of resources in 
the community. 

Once all needed information is collected and assessments are made, refer¬ 
rals in the community should be made, with probation officers acting as resource 
brokers. Probation officers must be willing to network and make ties with com¬ 
munity agencies who can provide needed services (Masters, 1994). Networking 
also includes acting as a liaison between probationers and the service providers, 
continual communication with agencies, and gathering feedback from the service 
providers. 

Probation officers must also ensure that probationers are complying with 
their established treatment plans. Besides ensuring compliance, the officers need 
to track progress. While ensuring that probationers are completing treatment 
plans and meeting rules/conditions of probation, the probation officer is ensuring 
that the community is protected. Again, this is the primary goal of probation. 
Although a probation officer may counsel individuals or a group of probationers, 
officers are not bound by the same rules of confidentiality that other professionals 



276 


King 


in the area of counseling are required to maintain. Probation officers can violate 
confidentiality if a probationer informs them that he or she violated the law or 
the probation conditions. As with other professionals in counseling, certain 
crimes must be reported to authorities, such as child abuse/neglect and elderly 
abuse/neglect (Masters, 1994). 

Probation officers are attempting to accomplish many goals. It is hoped 
through supervision and treatment that the probationer will change the following 
if necessary: their criminal behavior, negative attitudes about society, and 
antisocial values. It is also hoped that probationers will develop or improve 
decisionmaking and problemsolving skills. 

A. Challenging Offender Types 

Probation officers often focus on the present and encourage offenders to deal 
with their current situations and confront current issues. Masters (1994) explained 
that certain types of offenders pose special challenges to probation officers as 
well as to other correctional officers. 

Youthful offenders are often difficult to counsel, especially those who are 
dealing with the problems that accompany adolescence, such as identity crisis. 
Many young offenders want control over their lives and are rebellious and/or 
hostile when they realize that this is not possible during their time on probation. 
Youthful offenders tend not to accept responsibility for their own lives and will 
not normally seek help. 

Other challenges to successful probation center around probationers having 
few life experiences to draw from. Youthful offenders live for the moment and 
are rarely focused on the future, are susceptible to negative peer pressure, and 
their attention span is poor at best. 

Masters (1994) also explained the difficulties for probation officers as they 
attempt to deal with adult offenders. She (1994) stated that adult offenders are 
typically young, culturally diverse, economically deprived, and, in many cases, 
are institutionalized. Adult offenders frequently have juvenile records and are 
accustomed to being incarcerated. Another problematic group of offenders that 
probation officers deal with are inmates addicted to illegal substances and/or 
alcohol. Various illegal drugs can create personality alterations. This alteration 
can frequently lead to criminality and/or violence. Masters (1994) states that 
addicts tend to be similar regardless of their drug of choice and tend to rationalize 
or deny their behavior. They manipulate and lie to those around them. They will 
cheat and steal to maintain the supply of their drug of choice. 

Another group of offenders with special needs are female offenders. As 
with their male counterparts, they are typically young, from a diverse group, and 
economically deprived. Many are single parents and must support children as 
well as themselves. In many cases they do so with government assistance or by 
working in a low-paying job. Therefore, many of these women will need addi- 



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tional support and assistance from their probation officers, especially in work 
skill development, education, and parenting skills. Because many female offend¬ 
ers have lived abused lives and are often in, or have been in, battering relation¬ 
ships with men, women offenders often feel powerless and lack self-esteem. 
These women are often passive and are easily controlled by men (Masters, 1994). 

A final type of offender creating special concern for probation officers is 
the sex offender. Probation officers need to recognize their own individual biases 
and the low rate of success in dealing with sex offenders. Continued research is 
needed in order to find out “what works” with this group. 


IV. IS PROBATION EFFECTIVE? 

Is probation effective? This question is difficult to answer. Masters (1994) advo¬ 
cates that success and failure are more reflective of the probationer’s determina¬ 
tion than the efforts of the probation officer. She states that if a probationer is 
to reform, he or she must be in pain, emotionally or physically. Many refer to 
this as hitting “rock bottom.” Most importantly, the probationer must be willing 
to accept the guidance of the probation officer and view the probation officer as 
a person who wants to help effect change. 

In most research projects, effectiveness has been determined by low recidi¬ 
vism rates: an offender being rearrested and convicted. Another issue used to 
determine effectiveness is the cost of a program. Supervision of probationers has 
been determined to be less costly than supervision of inmates in correctional 
facilities. This is not surprising; offenders incarcerated must be fed, clothed, and 
ensured of the basic life necessities that an individual in the community would 
assume for himself or herself. Of course there are exceptions. Offenders serving 
time in the community are often dependent on welfare or public services for 
their basic life necessities. If a probationer violates conditions that were set forth 
(technical violation) or if they commit a new crime, this can result in a revocation 
of probation. The probationer could be incarcerated for the length of their original 
sentence in a correctional facility. 

A. Probation Revocation 

Mays and Winfree (1998:238) remind researchers that there are “only two possi¬ 
ble outcomes” to probation. The probationer will either complete time on proba¬ 
tion or not complete the time. Standard revocation processes must be followed. 
These standards resulted from two Supreme Court cases, Mempa v. Rhay (1967) 
and Gagnon v. Scarpelli (1973). The probationer must be informed of probation 
violations and is entitled to a preliminary hearing to determine if probable cause 
exists for probation revocation. If probable cause is established and the proba¬ 
tioner enters a “not guilty” plea, a revocation hearing is conducted. 



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Standards and procedures must be followed at the revocation hearing as 
well. The probationer can testify in defense and call witnesses. In most cases, a 
probationer can have an attorney to assist and cross-examine witnesses and chal¬ 
lenge all evidence used in the hearing. The state does not have to prove that the 
probationer was acting inappropriately to the same standards that are required 
by a criminal trial: beyond a reasonable doubt. It is only necessary to show pre¬ 
ponderance of the evidence to revocate probation. Hearsay evidence can also be 
introduced into the proceedings. If the probationer is found not to have violated 
probation, previous probation status is maintained. If the probationer is guilty of 
violating probation (technical violation or a new offense), the offender’s proba¬ 
tion can be revoked and the offender can be imprisoned. 


B. What Works and How to Determine Who is Amenable 
to Probation 

A major difficulty with probation and other community-based correctional 
alternatives has been the failure of such programs to show that they “work” 
(Petersilia, 1993). If a program is effective, who is more likely to succeed on 
probation? Judging the success of probation is difficult to do. Research has been 
conducted to help determine the answer to these questions. 

Writings as early as 1932 stated that a person succeeding on probation 
could be predicted by a combination of variables about the person’s life prior to 
being placed on probation. The writers of that time did not believe that one vari¬ 
able was more important than others (Monachesi, 1932). Determining if probation 
was successful was based on recidivism: Did the probationer commit another 
offense? 

Perhaps other variables should be used to determine successfulness. The 
American Probation and Parole Association (1992) recommended that as re¬ 
searchers attempt to determine success of probation, they should examine issues 
such as rates of employment and drug usage among the probationers. One major 
problem that exists when attempting to understand the success of probation is 
how jurisdictions define terms. Probation can occur at multiple levels in our cor¬ 
rections system. Counties, states, and the federal government use probation as a 
common sanction. Within these jurisdictions, judges and probation department 
personnel can disagree over terms such as recidivism and success. For the pur¬ 
poses of evaluating if probation is an effective or successful alternative to incar¬ 
ceration, success will be defined as a person completing their probation sentence 
without revocation. Revocation and/or rearrest will be considered ineffective or 
a failure. 

Again, as stated earlier, the first attempt to determine if probation was effec¬ 
tive was to focus on whether or not the probationer recidivated. In the 1980s, 
efforts were made to determine characteristics common among probationers who 
succeeded. Efforts were also made to determine characteristics common among 



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probationers who failed or did not complete their probation sentence. Some of 
the first characteristics evaluated were factors such as the gender of the probation¬ 
ers, age, employment history, current employment status, educational success/ 
highest grade completed, and the stability of a marriage (Scott and Carey, 1983; 
McCarthy and Langworthy, 1987; Incavido, 1998). 

In the 1990s several research projects determined that prior criminal record 
was the best indicator of who would succeed and who would fail during probation 
(Morgan, 1993; Sims and Jones, 1997). One way in which probation officers and 
agencies can help to ensure a high rate of success or completion is to classify 
offenders based on characteristics that have been shown to be correlated with 
completion and failure. As mentioned above, prior criminal record is an important 
issue to examine as well as drug abuse/dependency, unemployment, and family 
or marital problems. 

Another dilemma that affects the ability to predict repeat offending occurs 
with the first-time offender. These individuals have little or none of the common 
factors traditionally used to predict future behavior, such as prior arrest history. 
Liberton and colleagues (1992) stated that young first-time offenders have diffi¬ 
culties succeeding on probation because they have difficulties adjusting to, and 
following, the conditions set forth by their probation officers. These young of¬ 
fenders usually lack a stable support system, including a spouse, children, steady 
employment, a steady home, and other factors that form a stable support system. 
Not only are first-time probationers a problem, but studies show that their success 
rates tend to be somewhat low. Youthfulness of offenders is only one concern; 
drug usage among probationers is another. 

Many probationers need drug treatment; unfortunately, treatment options 
are not always available for probationers. Incavido (1998) found that inmates 
who need drug treatment, and did not receive it, failed their probation because 
they were rearrested for drug-related offenses. 

C. Predicting Probation Outcome: Risk 
Assessment Devices 

How does one predict probation outcome? King and co-workers (1998) con¬ 
ducted a research project to develop a risk assessment device for juveniles. A 
literature review found that there were common variables used to determine who 
would succeed on probation. Morgan (1993) determined that nine variables seem 
to be indicators that a person will or will not succeed on probation: gender, age, 
education level, marital status, sentence length, prior criminal history, employ¬ 
ment, race, and offense type. Female probationers tend to be more successful at 
completing their time on probation without additional charges or violating the 
conditions of their probation than male probationers. Married probationers are 
usually more “stable” and thus more likely to succeed. The older and more 
educated probationers are less likely to repeat criminal behavior after completing 



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their probation sentence. Race is also an indicator that reflects the discrimination 
in society. Probationers who can maintain employment are more likely to succeed 
than those who do not. Offense history and type are also correlated with probation 
success. If a person has a long history of criminal/delinquent behaviors, he or 
she is more likely to fail on probation (revocation or recidivate). Morgan (1993: 
316) found that for sentences of longer than 5 years, the likelihood of failure is 
greater. 

King and colleagues (1997) found many variables important to determining 
success rates for juveniles, and these were very similar to adult variables for 
predicting success. Gender of the juveniles was shown to have an impact on 
delinquency. As with adults, male probationers are more likely to recidivate, 
revocate, or abscond than are women. The age at which a juvenile is first arrested 
was shown to be a strong predictor of continued delinquency or offending. If 
juveniles are arrested for the first time at the age of 13 or younger, they are at 
a high risk of probation failure. Race was another indicator of probation failure. 
Again, caution has to be exercised when dealing with an issue such as race. It 
does not imply that a person of color is more delinquent or criminalistic than a 
white person. This variable has been found to indicate that juveniles who are 
nonwhite have a high recidivism rate. This may be a reflection of social conditions 
or discriminatory practices by the justice system. 

Current offense is also an important factor to consider. Number of prior 
offenses should be considered. The more previous offenses, the stronger the indi¬ 
cator that a youth would not succeed on probation. This was also the case with 
adult offenders. Educational history, when dealing with juveniles, should be eval¬ 
uated differently than adults. With adults, completion of high school and/or col¬ 
lege is evaluated. With juveniles, problems that the juvenile has had in school 
need to be evaluated. 

Dealing with juveniles on probation creates special problems for probation 
officers. They have to deal not only with the youth but also with the family and 
its problems. One indicator of juvenile success on probation is the financial stabil¬ 
ity of the youth’s family. If the family receives public assistance or if the guard- 
ian(s) or parent(s) is unemployed, the probability of failure increases. Besides 
the family’s financial history, the family composition needs to be examined. If 
juveniles live with their mothers or with their mothers and stepfathers, they tend 
to do more poorly on probation than do juveniles residing with their father, father 
and stepmother, grandparents, other relatives, adoptive parents, and others. Juve¬ 
niles who seem to perform the best on probation are those living with both of 
their biological parents. 

Another issue that needs to be addressed is the stability of the family. All 
families have “problems.” When evaluating this variable, probation officers need 
to look for signs of consistent problems or severe problems such as child abuse 
or family involvement with a children’s service agency. Once the family situation 
is examined, it is imperative for a probation officer to examine with whom the 



Probation 


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youth ‘ ‘hangs out.” If the juvenile is a member of a delinquent gang or associates 
with juvenile delinquents or adult criminals, probability of failure will again in¬ 
crease greatly. If the juvenile is abusing drugs or alcohol, (experimentation does 
not apply—-a juvenile must be using the substance weekly or daily) this is another 
indicator of failure. If members of the juvenile’s home are abusing drugs or alco¬ 
hol, this is also an indicator of failure. Emotional stability of a youth must also be 
considered. If the juvenile is currently in counseling or using behavior-controlling 
medications, he or she is at risk of increased failure. It must be emphasized that 
these variables alone do not indicate success or failure; a combination of these 
variables must be evaluated. 

D. Classification Levels 

Once all these variables are evaluated, the classification level must be obtained. 
Classification of adults or juveniles is based on the probability that they may 
recidivate, commit a new offense, violate their conditions of probation, or ab¬ 
scond. A common classification scheme deals with three levels of classification: 
minimal supervision, regular supervision, or intense supervision (these levels 
could be called numerous other names). 

Minimal supervision usually allows the probationer complete freedom of 
movement in the community. The probationer periodically reports to the proba¬ 
tion officer by telephone. However, there should be basic conditions attached to 
this “freedom.” For example the individual should have to obey guardians (if 
a youth), obey all laws including curfew, and consult with the probation officer 
when problems arise. It is recommended by Champion (1997) that the juvenile 
meet face-to-face with the probation officer once a month. Guardians meet face- 
to-face with the probation officer every other month. 

Regular supervision requires that the probationer meet conditions as an 
individual on minimal supervision: follow all instructions of the probation officer, 
complete school/counseling/or other mandated meetings. It is recommended by 
Champion (1997) that they meet face-to-face with their probation officer once a 
week. If a juvenile is on probation, the guardians need to meet face-to-face with 
the probation officer every other week. 

Finally, if a probationer is found to be at high risk of committing a new 
offense, recidivating, violating conditions of probation, revocation, or ab¬ 
sconding, that individual should be placed on intense supervision probation (ISP). 
ISP has many conditions and program requirements, which can include commu¬ 
nity service, restitution, paying fines, completing school/vocational training, or 
employment, or counseling. All conditions listed under minimal and regular su¬ 
pervision must be completed. It is recommended that these individuals meet face- 
to-face with the probation officer six times a month or on a daily basis (Siegel 
and Senna, 2000) if the probation officer or judge deem it necessary. If the proba¬ 
tioners are juveniles, their guardians should meet face-to-face with the probation 



282 


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officer three times a month. School officials should make contact with probation 
officers every other week. 

Langan and Cuniff (1992) conducted a study in which they evaluated more 
than 75,000 probationers. They found a failure rate (recidivism rate) of 43%. 
When they separated the probationers evaluated to be high risk, the failure rate 
for those probationers was 56%. The high-risk probationers were found to have 
several prior convictions and drug/alcohol abuse problems. 

A risk instrument, since it is not an exact instrument, should have an over¬ 
ride system (King et al., 1998). An override occurs when a probationer is moved 
to a higher or lower security classification than the one that the risk assessment 
device indicates. The primary reason that an override needs to be available is to 
ensure proper assessment for cases that have “peculiarities.” When probation 
officers calculate security level, they must remember that risk assessment devices 
rarely allow human knowledge and experience to be taken into account. For ex¬ 
ample, sex offenders tend to score low on risk assessment devices because of 
common personality types that predominate among this offender type (Dobson 
and Konicek, 1998). Because of this concern, probation officers need to have the 
ability to increase supervision level or decrease it. This option should be limited 
in its usage. If more than 20% of the risk assessment devices are overridden, 
there is a problem with the instrument or it is not being used properly (Dobson 
and Konicek, 1998). 

E. The Answer to the Question Posed: Is 
Probation Effective? 

Byrne and Pattavina (1992) argue that too many offenders are placed on probation 
and left to roam the streets and commit new crimes. However, they concluded 
that “the vast majority (more than 80% nationwide) of the offenders placed on 
probation complete their terms successfully with no new criminal arrests or con¬ 
victions” (Byrne and Pattavina, 1992:283). Of those individuals who fail to com¬ 
plete their probation sentence, are elements out of their immediate control respon¬ 
sible? What impact does unemployment rates in a region play on probation 
success? What roles do poverty, discrimination, and prejudice play? Other factors 
that may affect probation success or failure might be the policies of the probation 
department, the courts and their operation, and the policies and philosophies of 
the community where the offender is serving the sentence (Incavido, 1998). 

V. CONCLUSION 

If the goal of corrections in the United States continues to focus on “get tough,” 
probation may see some major changes. Petersilia (1997) suggested efforts should 
be taken to increase “crime control” over the probation population: 



Probation 


283 


1. Provide adequate financial resources to deliver treatment programs that 
have been shown to work. 

2. Combine both treatment and surveillance in probation programs and 
focus them on appropriate offender subgroups. Current evidence sug¬ 
gests that low-level drug offenders are prime candidates for enhanced 
probation programs. 

3. Work to gamer more public support by convincing citizens that proba¬ 
tion sanctions are punitive and, in the long ran, cost-effective. 

4. Convince the judiciary that offenders will be held accountable for their 
behavior. 

5. Give priority to research addressing probation’s most pressing prob¬ 
lems (7). 

Probation, as intended by John Augustus in the mid-1800s, should be 
equated with humanitarianism. Prison, as was the case in Augustus’ lifetime, can 
be detrimental to people. As Petersilia (1997:7) stated, “over time, probation 
will demonstrate its effectiveness, in terms of both reducing the human toll that 
imprisonment exacts on those incarcerated and preserving scarce resources to 
endure that truly violent offenders remain in prison.’’ 


REFERENCES 

Abadinsky, H. (1997). Probation & Parole: Theory & Practice, (6th ed., Prentice Hall, 
New Jersey. 

Allen, H. E., and Simonsen, C. E. (1995). Corrections in America: An Introduction, 7th 
ed., Prentice Hall, New Jersey. 

American Correctional Association. (1994). Vital Statistics, American Correctional Asso¬ 
ciation, Maryland. 

American Probation and Parole Association. (1992). Intensive Supervision Probation — 
Parole Training Manual, The American Probation and Parole Association, Lexing¬ 
ton, KY. 

Bureau of Justice Statistics. (1996). Probation in 1990, Correctional Populations in the 
United States, 1990, Department of Justice, Washington, D.C. 

Byrne, J. (1990). The future of intensive probation supervision and the new intermediate 
sanction. Crime and Delinquency 36: 6-41. 

Byrne, J., and Pattavina, A. (1992). The effectiveness issue: assessing what works in the 
adult community corrections system, in J. Byme, A. Lurigio, and J. Petersilia, eds., 
Smart Sentencing, Sage Publications, Newbury Park, pp 281-303. 

Champion, D. J. (1997). The Juvenile Justice System: Delinquency, Processing, and the 
Law, Macmillan Publishing Company, New York. 

Champion, D. J. (1998). Corrections in the United States: A Contemporary Perspective, 
2nd ed., Prentice Hall, New Jersey. 



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Champion, D. J. (1999). Probation, Parole, and Community Corrections, 3rd ed., Prentice 
Hall, New Jersey. 

Corbett, R. P., and Harris, M. K. (1995). Up to speed: A review of research for prac¬ 
titioners, Fed. Probation 59: 58-61. 

Dobson, C, and Konicek, P. (1998). Assessment and Development of the Sex Offenders 
Program Prioritization Scale, Department of Rehabilitation and Corrections, Co¬ 
lumbus, Ohio. 

Gesualdi, L. (1999). The work of John Augustus: Peacemaking criminology, Acad. Crimi¬ 
nal Justice Sci. Today 18: 1-4. 

Incavido, D. (1998). Analysis of Variables Influencing Probation Outcome, thesis project, 
Youngstown State University, Youngstown, OH. 

King, T. A., Conser, J. A., and Miller, H. J. (1998). Juvenile Probation: Risk Assessment 
Device of Mahoning County. Ohio, Youngstown State University, Ohio. 

Langan, P., and Cuniff, M. (1992). Recidivism of Felons on Probation, 1986-1989, Spe¬ 
cial Report. U.S. Department of Justice, Bureau of Statistics, Washington, DC. 

Latessa, E. J., and Allen, H. E. (1999). Corrections In The Community, 2nd ed.. Anderson 
Publishing Company, Ohio. 

Liberton, M., Silverman, M., and Blount, W. (1992). Predicting probation success for the 
first-time offender, Int. J. Offender Ther. Comp. Criminol. 36: 335-347. 

Maguire, K., and Pastore, A. (1995). Sourcebook of Criminal Justice Statistics 1994, U.S. 
Department of Justice, Bureau of Justice Statistics. Washington, D.C. 

Masters, R. E. (1994). Counseling Criminal Justice Offenders. Sage Publication, Beverly 
Hills, CA. 

Mays, G. L., and Winfree, L. T. (1998). Contemporary Corrections, Wadsworth Publish¬ 
ing Company, Belmont, CA. 

McCarthy B. R„ and McCarthy, B. J. (1997). Community-Based Corrections, (3rd ed.), 
Wadsworth Publishing Company, Belmont, CA. 

Monachesi, E. (1932). Prediction Factors in Probation, The Sociological Press, MN. 

Morgan, K. (1993). Factors influencing probation outcome: A review of the literature, 
Fed. Probation 57: 23-29. 

Petersilia, J. (1997). Probation in the United States, Natl. Inst. Justice. 233: 2-7. 

Petersilia, J., and Turner, S. (1990). Comparing intensive and regular supervision for high- 
risk probationers: Early results from an experiment in California, Crime Delin¬ 
quency 36: 87-111. 

Price, B„ and Baunach, P. (1980). Criminal Justice Research: New Models and Findings, 
Sage Publications. London. 

Reiman, J. (1998). The Rich Get Richer And The Poor Get Prison, 5th ed., Allyn and 
Bacon, Boston. 

Rush. G. E., and Torres, S. (1998). The Encyclopedic Dictionary Of Criminology, Coo- 
perhouse Publishing Company, Nevada. 

Scott, M., and Carey, H. (1983). Community alternatives in Colorado, Criminal Justice 
and Behavior, 10: 93-108. 

Siegel, L. J., and Senna, J. J. (2000). Juvenile Delinquency: Theory, Practice, and Law, 
7th ed. Wadsworth, Belmont, CA. 

Sims, B, and Jones, M. (1997). Predicting success or failure on probation: Factors associ¬ 
ated with felony probation outcomes. Crime Delinquency 43: 314-327. 



16 

Alternatives to Incarceration 


Rachel Porter 

Vera Institute of Justice, New York, New York 


Suppose you are a judge faced with the following defendant: a 25 year-old man 
arrested for selling a small amount of cocaine to an undercover police officer. The 
defendant has no prior felony offences on his record, and his crime is classified as 
nonviolent. What are your options? You can sentence the man to jail or prison, but 
you may be concerned that incarceration will do little to persuade the defendant to 
stop selling drugs, and may actually make it more likely he will return to criminal 
activity when he returns to his community. You might prefer to sentence him to 
probation, since it is his first offence, requiring that he see a probation officer weekly 
or monthly for the next several years. However, state laws may prohibit a sentence 
of probation alone; and, you may be hesitant to release a convicted offender back 
into the community, fearing that he will return to selling drugs. Suppose you have 
seen many defendants like this man, and your experience leads you to think that 
he sells drugs in order to support his own addiction. Would you be interested in a 
different option: one that is less severe than prison, but more restrictive than proba¬ 
tion? This is the option provided by alternative to incarceration programs. 


I. INTRODUCTION AND CONTEXT 

A. Alternatives to Incarceration: Front-End and 
Back-End Programs 

Alternatives to incarceration (ATIs) are punishments created to expand sentenc¬ 
ing options for criminal offences. Often referred to more generally as community- 
based sanctions or intermediate sanctions, ATIs provide sanctions that are less 
restrictive than jail and prison sentences, but are significantly more restrictive 


285 




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Porter 


than probation. ATIs may provide the offender with direct services, case manage¬ 
ment, and referrals to outside service networks to develop a crime-free lifestyle. 
These sanctions can be used preadjudication or postadjudication, and can be ap¬ 
plied at sentencing (“front-end” programs) or as a condition of parole (“back¬ 
end”). 

Front-end programs, which are the focus of this chapter, are themselves a 
sentence, or a condition of a sentence, and are monitored by the court. Generally, 
in front-end programs the defendant agrees to enter the ATI program in exchange 
for either a reduction or dismissal of charge if the defendant successfully com¬ 
pletes the program. Back-end programs are a form of early release, and use parole, 
rather than the court, to monitor program compliance. If the defendant fails to 
complete the program in a front-end program, the defendant agrees to serve a 
period of incarceration longer than for the original offense absent the ATI. This 
agreement between the court and the defendant is commonly referred to as the 
carrot and stick of alternative punishments. The incentive to enter the ATI is 
twofold: a positive incentive of reducing or eliminating time incarcerated (or 
avoiding a criminal conviction if the charge is dropped) is coupled with a negative 
incentive of avoiding a heavy sanction in the event of program failure. 

ATIs are currently used in numerous forms including boot camps, drug 
treatment, and community service, and may last months or years. They may serve 
primarily to punish or to rehabilitate. ATIs may focus on a specific area of rehabil¬ 
itation, notably drug treatment, or they may be general sentences without a spe¬ 
cific rehabilitative function. Because of their growing role, it is important to un¬ 
derstand what ATIs are, and the pitfalls in their implementation. This chapter 
will provide an overview. The first section defines key concepts of ATIs, the 
context in which they are used, and their goals; the second section discusses four 
types of ATIs; the final section discusses issues related to ATI utilization. 


B. The Function of ATIs 

ATIs serve three primary functions: 

1. ATIs can reduce overcrowding in prisons and jails and thereby save 
money. ATIs free jail or prison space for serious offenders by placing 
nonviolent offenders, who pose little threat to their communities, in 
alternative programs. By reducing jail and prison use for these offend¬ 
ers, ATIs cut costs associated with incarceration. 

2. ATIs are punitive. They provide punishments that restrict the freedom 
of the offender, and require the offender to consider the consequences 
of criminal activity. Punishment is both retributive and deterrent. Retri¬ 
bution both sanctions the offender and satisfies public desire to respond 
to a violation of social norms. Deterrence protects the public safety. 



Alternatives to Incarceration 


287 


ATIs must fulfil both of these functions to successfully substitute for 
incarceration. Research has indicated that many people believe nonin- 
carcerative sanctions are appropriate in cases where there is minimal 
threat to the community (DiMascio and Mauer, 1997). 

3. Many ATIs are designed to rehabilitate offenders. They provide the 
offender with the support services, education, and treatment needed to 
avoid future criminal activity. Typically, offenders have numerous so¬ 
cial and economic disadvantages. ATIs may be the only mechanism for 
offenders to access services such as healthcare, education, vocational 
training, and drug abuse treatment. 

In describing what ATIs are, it may be helpful to say what they are not. 
Alternatives to incarceration are somewhat different from alternative sanctions 
and alternatives to detention. In order for a sanction to be a true ATI, the offender 
population it serves should be one that would be incarcerated, absent the ATI. 
Therefore, sanctions for offenders who have committed minor crimes, or who 
for other reasons are unlikely to be sentenced to jail or prison upon conviction, 
are not ATIs. An offender who jumps a subway turnstile or commits a traffic 
violation may be sentenced to a day of community service or to pay a fine, but 
that would not be an ATI because the offender would not otherwise be sentenced 
to jail. 1 Unlike those other important criminal justice options, ATIs provide an 
alternative to the central role of incarceration in addressing serious criminal ac¬ 
tivity. 

C. The Goals of ATIs 

The three goals of ATIs are cost-savings and reducing prison overcrowding; pun¬ 
ishment and public safety; and offender rehabilitation. How these goals are de¬ 
fined depends on who defines them. 

1. Cost Savings 

The ATI goal that enjoys the most widespread support is cost-savings. By the 
end of 1999 over two million people will be incarcerated in the United States. 2 
As a result of increases in jail and prison populations, state and local correctional 
institutions are frequently, and unconstitutionally, overcrowded. The costs of this 
incarceration, and the projected costs of future prison use, focus attention on the 


1 It is the offence, not the sanction, that defines an ATI. Sanctions such as fines and community 
service may be used as an ATIs or as intermediate sanctions that are not alternatives to incarceration. 

2 The Bureau of Justice Statistics, a department of the Department of Justice provides annual figures 
on criminal justice statistics. The Sentencing Project, a private research and policy organization, 
has estimated that the national prison and jail population will reach 2,152,484 by 2000. 



288 


Porter 


need to reduce corrections expenditures. Judges who witness the effect of aggres¬ 
sive arrest policies and are obliged to add to burgeoning prison populations may 
well be interested in reducing incarceration. Politicians, and particularly correc¬ 
tions officials, have a clear interest in reducing these costs, assuming they seek 
greater efficiency. Only a true alternative to incarceration program has the poten¬ 
tial to address this issue, because only ATIs focus on offenders who would other¬ 
wise incur jail (or prison) costs. 

2. Public Safety and Recidivism 

Another important goal of ATIs is to punish, both by providing “just desserts” 
for the crime and by deterring future crimes. Together, these two punitive func¬ 
tions protect public safety. The most common measure of ATIs’ on public safety 
is recidivism: arrest for new crimes. ATIs prove that they provide appropriate 
punishment if participants’ rearrest rates are no worse than they would be had 
the offenders been incarcerated. 

Jail and prison are commonly seen as the greatest protection against crime, 
although that argument has been challenged as rising rates of incarceration fail 
to reduce crimes proportionately (Clear, 1996). In order to address the public 
safety issue, ATIs challenge the primacy of prison, maintaining that they too can 
legitimately reduce reoffending. It is important to understand that in the goal to 
reduce reoffending, ATIs are compared with incarceration and release into the 
community (which is, of course, a byproduct of the vast majority of incarcerative 
sentences). ATIs do not need to show lower rates of reoffending to demonstrate 
their utility. 

In considering public safety, we can differentiate between crimes that phys¬ 
ically threaten the public safety and those that are low-level or so-called vic¬ 
timless crimes. In the case of the former, for example, assault incapacitation 
clearly removes the possibility of reoffending for a discrete period of time. The 
effect is limited to the period of confinement, and it is difficult to predict whether 
the offender will return to criminal activity upon release (i.e., the rehabilitative 
effects of incarceration). In the latter situation, incapacitation will not necessarily 
result in fewer people being victimized for a set period of time. A person arrested 
for selling cocaine who is sentenced to 18 months in prison will not sell drugs 
on the street for those 18 months, but it is likely that someone else will sell the 
same drugs on the same streets. In this case it is virtually impossible to assert 
that either the original offense or a subsequent violent act will be averted. In this 
scenario the public safety can be considered no more at risk if an ATI sentence 
is imposed than it would be if the offender were incarcerated. While there are 
still relatively few large studies, generally ATIs show rates of reoffending no 
higher than those of a matched comparison group. 



Alternatives to Incarceration 


289 


3. Rehabilitation 

Many ATIs aim to rehabilitate the offender. Here, too, comparison is with the 
alternative (that is, incarceration) and as with the two other goals more research 
is needed to understand fully how well ATIs achieve this goal. As a penal philoso¬ 
phy, rehabilitation is predicated on the idea that an offender is burdened by social, 
financial, and health impediments, all of which may shape a willingness to com¬ 
mit crimes. Rehabilitation may involve recovery from drag addiction through 
treatment, or it may focus on teaching living skills to assist the participant in 
finding and maintaining employment. Other issues that may be addressed in reha¬ 
bilitating the offender include family relations, mental and physical health, educa¬ 
tion, and social relations. Generally, rehabilitation attempts to affect long-term 
problems and is slow-going. As a result, service providers report that old patterns 
of behavior frequently reemerge, and that such lapses are one of the primary 
obstacles in achieving long-term change. 

Again, evaluation is critical in assessing whether the goal is met. While 
most ATIs posit that their services stabilize offenders, that can only be confirmed 
by tracking whether program graduates actually use and value the services pro¬ 
vided, and make long-term changes in their lives. Research has shown employ¬ 
ment, marriage, and drug use all affect the likelihood of reoffending. Do ATI 
participants get graduate equivalency degrees and stable jobs? Do they get mar¬ 
ried? Do they use drags? The answers to these questions, and other like them, 
provide measures of ATI success. 

Rehabilitation programs used by the couit as ATIs may be provided by 
for-profit agencies that ran as a business, or not-for-profit advocacy organizations. 
Because both depend on positive court perceptions to maintain client intake, both 
may be reluctant to submit to rigorous evaluation or to report actual program 
failure rates. Unlike cost-savings and punishment, assessing the goal of rehabilita¬ 
tion involves an analysis of direct service work. Isolating important treatment 
factors is particularly difficult in such an analysis. Foi this reason, collaboration 
between researchers and ATI planners and administrators is important, so that 
research can be designed to best capture program effect, and research findings 
can be interpreted with greatest clarity. 

4. Whose Goals? ATI Stakeholders 

Depending on which policymakers and criminal justice stakeholders are involved 
in designing and implementing an ATI, it will have different goals and different 
methods for reaching them. These goals may conflict with each other. For exam¬ 
ple. both punishment and rehabilitation are expensive, exasperating policymak¬ 
ers’ efforts to reduce corrections costs. A punitive sanction may likewise do little 
to rehabilitate, leaving defense advocates concerned about the welfare of their 



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clients. While ATIs provide attractive options to a variety of criminal justice 
stakeholders, clarity of purpose and collaboration between public and private 
agencies are both essential. ATIs can fail to meet any goals if stakeholders are 
unable to agree on the need for the new sentencing options, or are unwilling to 
devote the resources to implement the ATI effectively. 

It is useful to keep in mind that the group of criminal justice stakeholders is 
diverse. It includes policymakers, judges, defense attorneys and district attorneys, 
officials in the Department of Corrections and in Departments of Probation and 
parole, and staff of rehabilitation programs. These stakeholders are likely to place 
varying emphasis on the different responsibilities of saving costs, protecting the 
public safety, and rehabilitating offenders. Decisionmakers may disagree on the 
application and utility of ATIs, showing great interest in some ATI benefits and 
no interest at all in others. For example, a district attorney (DA) may agree that 
ATIs are useful in providing treatment to some offenders, but would not be will¬ 
ing to release offenders into ATIs who would otherwise be incarcerated, for fear 
of jeopardizing the public safety. From the DA’s perspective an ATI is a good 
deal for the offender. The goal of cost-savings would be lost if the DA viewed 
rehabilitation as a way to make a probationary sentence more severe, rather than 
to make an incarceratory sentence less severe. In this example, the goal of saving 
prison space is no goal at all for one of the primary stakeholders, and we can 
expect that ATI utilization will fail to provide cost savings. 


II. ATI OPTIONS 

While ATIs were widely implemented in the 1990s, they generally originate at 
the local level, unlike many criminal justice policies that are state or federal 
innovations. As a result, alternative sanctions are difficult to characterize, and 
vary significantly by locality. For example, mandatory drug treatment in one 
jurisdiction may require the offender to live in a restrictive program for up to 2 
years. In a different part of the country, drug treatment may entail attendance in 
a counseling program for several hours each week. Some jurisdictions seek to 
implement a range of alternatives, while others use ATIs more modestly. 

Before describing four alternative to incarceration models, it is worth not¬ 
ing that many sentencing options are not discussed here. These are the intermedi¬ 
ate sanctions that do not necessarily serve to divert offenders from jail or prison, 
but that can provide a fuller, more complex sentence structure to address crime. 
While they are rarely organized into a systemic continuum of sanctions, the vari¬ 
ety of programs that have been attempted is testimony to interest in their potential. 
Day fines and electronic monitoring are examples of midlevel sanctions employed 
throughout the country to punish effectively. Day fines impose monetary punish¬ 
ment by determining a value of restitution relative to the income of the offender. 



Alternatives to Incarceration 


291 


Electronic monitoring restricts offender movement and is generally mandated in 
coordination with employment requirements. These sanctions are used primarily 
for low-level offenders who would not otherwise be incarcerated. 

The two main obstacles in implementing intermediate sanctions are both 
enforcement concerns. Lack of enforcement can render these sanctions impotent. 
If the consequences of noncompliance are no more intrusive than the original 
sentence, an offender has little incentive to comply. On the other hand, because 
these sanctions are less intrusive, court actors may feel justified in using more 
than one sanction for a single case. For example, a shoplifter is sentenced to 
probation, and a fine, and to take a didactic class on crime. Piled on each other 
like this, sanctions may make financial and time demands beyond what the of¬ 
fender can manage, and enforcement is likely to be more strict than in a standard 
sentence. As a result, the offender may fail to comply with all conditions and 
may be returned to custody more readily than had the sentence been less intrusive. 
Intermediate sanctions, like the ATIs described in further detail below, have 
proven unable to meet expectations when too much is demanded from them. 

A. Intensive Supervision Probation 

Intensive supervision probation (ISP) is a form of probation in which far more 
is required of the offender than with standard probation. Typically, someone on 
ISP must find and maintain employment, submit urine for drug testing every 
week, pay fines according to a schedule, and report to the probation officer several 
times each week. ISP caseloads are a fraction of the size of standard probation 
caseloads, generally remaining under 50 offenders per officer. As a sanction in¬ 
tended for probationers, ISP is the least likely to achieve actual reductions in 
incarceration rates, and is most likely to be used for offenders whom the court 
would otherwise not incarcerate, a practice commonly known as ‘ ‘net-widening.” 
However successful ISP programs can be ATIs if they are used for offenders 
instead of a jail sentence. Of course, this depends on the willingness of judges, 
prosecutors and policymakers to permit this community-based sanction for higher 
level offenders. 

ISP programs have been implemented in every state, frequently attempting 
to reach several goals, including cost-savings, jail displacement to reduce over¬ 
crowding, and rehabilitation. They are designed to provide more stringent punish¬ 
ment than probation alone. An evaluation funded by the National Institute of 
Justice confirmed that this was the case. However a second goal in most states 
was to reduce recidivism among probationers, and the same study found that ISP 
programs in 14 states failed to produce rates of rearrest lower than in a control 
group. Furthermore, ISP programs drew on defendants who would not otherwise 
have received jail sentences. 

Many states, discouraged by the negative findings, decided that ISP was 



292 


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too expensive given the relative lack of benefits. Such reaction, while understand¬ 
able, does not take full account of the potential for adjusting ATIs to address 
implementation problems. One clear problem with ISP is the conflicts between 
goals. These programs target the lowest-level offender who could be eligible for 
an ATI, so alternative jail sentences would be low, and cost-savings could be 
difficult to achieve. In addition, cost savings is undermined by the high level of 
monitoring, increasing the likelihood that a participant will be taken into custody 
for a minor violation that would otherwise go unnoticed, or at least unsanctioned. 
Cost savings comes into further conflict with the rehabilitation goals of ISP, 
which require increased probation staff, and increased effort on the part of that 
staff. Yet greater attention to case management, supervision, and enforcement 
succeed in providing punishments that appropriately fit the crime and that are 
more intensive than standard probation but not as severe as incarceration. 

B. Community Service 

Offenders who present minimal physical risk to the community may be sentenced 
to work for a up to approximately 2 months in a community service program. 
In a typical case, the offender agrees to enter a guilty plea in return for charge 
reduction or case dismissal upon successful completion. As with most ATIs, the 
penalty for failure is a longer incarcerative sentence than would otherwise be 
given. Once a defendant has agreed to enter a community service program, he 
or she has a limited period of time in which to complete the work. Generally 
these ATIs work in coordination with churches, community centers, and other 
local groups. ATI participants perform manual labor including maintenance work, 
gardening, painting and repairs. There may be some job training associated with 
the work, and frequently community service programs have linkages with voca¬ 
tional development agencies to assist participants in finding stable employment. 

While community service is frequently associated with low-level misde¬ 
meanor offenses, the sanction is used in some localities (notably New York; see 
McDonald, 1986) and in other countries as an alternative to jail for a range of 
crimes. The appeal of community service has been evident to societies for centu¬ 
ries: it is onerous for the offender, involving as it does both labor and public 
exposure; it collects restitution for the community, in the form of labor; and it 
is significantly less costly than incarceration. Failure to comply with the work 
requirement results in revocation by the court to jail. 

Several elements are critical for successful implementation of community 
service sentences. Enforcement of the work schedule is the only way of ensuring 
compliance. If offenders know that they will not be penalized for dropping out 
of the program, they may be more likely to do so. Warrants issued when an 
offender absconds are helpful if the person is rearrested, but in a strained criminal 
justice system, the community service program itself is an important ally in main- 



Alternatives to Incarceration 


293 


taining compliance. Another important issue is the extent of the requirements 
placed on the offender. As with drug treatment, and several intermediate sanc¬ 
tions, multiple sanctions may make compliance with all sanctions difficult for 
the offender. The final issue in successful utilization of community service as an 
ATI is ensuring that judges and DAs are willing to place offenders who would 
otherwise be incarcerated. As with any ATI, its success rests on the integrity 
with which it is implemented. 

C. Substance Abuse Treatment 3 

A variety of alternative to incarceration programs are designed to address sub¬ 
stance abuse on the part of the targeted offender population. It is widely acknowl¬ 
edged that the majority of people arrested on criminal charges have histories of 
drug use. While a causal link between drug use and aggression has not been 
definitively shown (Fagan, 1990), there remains a clear criminal justice interest 
in treating drug abuse. Many defendants arrested on drug sales, burglary, robbery, 
and assault charges may have engaged in their crimes in order to support an 
addiction. Many of the laws targeting drug dealers tend to affect low-income 
communities of color disproportionately, a fact that does not go unnoticed by 
many of the judges and attorneys charged with processing these cases. Predict¬ 
ably, many court officials have become frustrated with what has been termed the 
‘ ‘revolving door’ ’ of criminal activity and drug use. Prison-based drug treatment, 
while promising for some inmates, is not widely available and does not do enough 
to allay fears that the offender, once back on the street, will be in no better 
position than upon arrest, and therefore just as likely to return to drug use and 
crime. 

The coercive power of the court has struck many as the ideal point of 
intervention in the life of a drug abusers. Drug abusers frequently deny the prob¬ 
lems associated with drug use, and do little to change their behavior; by mandat¬ 
ing treatment, the court forces the defendant to confront the addiction. The court 
monitors the defendant’s progress in treatment through frequent case adjourn¬ 
ments, so that the court continues to serve as an authority compelling the offender 
to remain in treatment. 

Drug treatment can take several forms: drug courts are enjoying a huge 
surge of interest and funding in the late 1990s; boot camps frequently have a drug 
treatment component, as may ISP. The drug treatment ATI may be an outpatient 
program, usually with a case management component, or the offender may be 
required to enter a residential drug treatment program. Either modality may last 


3 For the purpose of brevity, drug will be used to describe both illegal and legal drugs, including 
alcohol. 



294 


Porter 


from 3 months to more than a year, although residential treatment is generally 
longer than outpatient. Typically, drug treatment involves intensive group and 
individual counseling, peer support, and, possibly, confrontation, vocational and 
educational training, and additional skills-building classes. Programs expect that 
participants will be resistant initially, and generally design programs in three 
phases that correspond to individual development: introduction phase, intensive 
treatment phase, and transition back to the community phase. Each phase can 
last several months, and while the participant is expected eventually to progress 
through all phases, it is not uncommon for a person to be demoted or held back at 
different points in treatment. While drug treatment programs have several broad 
concepts in common, treatment implementation varies widely. Factors such as 
staff training, program environment, curriculum use, and content are difficult to 
standardize, but are better indications of the type of services provided than the 
promotional literature a program disseminates. 

Retention has been shown to be an important factor in determining positive 
treatment outcomes, such as remaining drug-free after program completion and 
refraining from future criminal activity. Research indicates that participants who 
remain in drug treatment at least 30 days are significantly more likely to complete 
treatment and to remain drug-free. Yet dropout in the first 30 days of treatment 
is common. Frequently, the demands made by drug treatment programs are new 
for participants, who may walk out of a program that demands punctuality, spe¬ 
cific dress, language modification, and adherence to program rules. Ideally, the 
court and probation officers work with the treatment provider to maintain of¬ 
fender motivation to remain in the program. 

Over the last decade the drug court movement has provided a new structure 
for processing drug cases, which relies on ATIs for the majority of cases. Drug 
courts are special court parts for offenders in need of drug treatment. The courts 
are not always strictly ATI-based because some focus on offenders who would 
otherwise receive only fines or probation. The courts differ from other criminal 
courts in that they are intended to be nonadversarial. The DA and defense work 
together with the judge and court staff to place the offender in treatment. The judge 
in a drug court motivates, counsels, and monitors the offender with a level of detail 
is not possible in general court parts. The offender enters drug treatment and returns 
to court frequently so that the judge may monitor treatment progress and address 
the defendant’s behavior using a system of graduated sanctions and rewards. As 
with other ATIs, the court either reduces or dismisses the charges against a defen¬ 
dant who successfully completes the drug court, but imposes an incarcerative sen¬ 
tence on those who fail. While there little long-term research on drug courts, a clear 
problem with their utilization is their costs. Net-widening does not appear to con¬ 
cern many jurisdictions that have implemented these courts, which often target low- 
level offenders. 



Alternatives to Incarceration 


295 


While there is an extensive body of research on drug treatment, a great 
deal remains unknown. We know, for example, that motivation affects retention 
in treatment; however, the importance of the source (e.g., court, family, individ¬ 
ual) of the motivation is less clear. While we know that retention is related to 
treatment outcome, we do not know nearly as much about how the content of 
the treatment relates to retention or outcome. Because the content and quality of 
drug abuse treatment vary enormously and are difficult to measure, evaluations 
of these programs are both complicated and costly. Furthermore, drug abuse treat¬ 
ment is frequently described by programs in jargon-laden language, which may 
obscure how program implementation differs from program planning, and which 
requires clarification if programs are to be compared. Add to these issues the 
financial motivation of some treatment providers and the offender advocacy moti¬ 
vation of others, and the result is a tangle of factors affecting the quality of both 
treatment and court reporting. 

One additional complication must be considered when we look at drug 
treatment ATIs. Therapeutic use of drug treatment will not always coincide with 
punitive use of treatment. Drug treatment sounds like a health intervention, so 
one might assume that decisions about the type and dosage of treatment would 
be clinically based. However, the judge and district attorney who use drug treat¬ 
ment as an ATI are not clinicians, rather, they look for tin appropriate punishment, 
and permit a therapeutic alternative to a jail or prison stay. The punishment must 
still be thought to address the crime appropriately. Many court actors believe 
that a defendant who would otherwise be incarcerated should not be permitted 
to remain at liberty in the community and therefore sentence the offender to 
residential drug treatment, rather than outpatient treatment. The problem with 
this is that residential treatment may not be clinically appropriate for the offender. 
Typically, the more severe the addiction, the more restrictive the treatment recom¬ 
mendation, but severity of offense and severity of criminal history, which shape 
the court’s decision, do not necessarily correspond with severity of addiction. 
Lack of effective screening to match offender and treatment program sets up the 
defendant to fail. Failure in the treatment program can mean both failure to over¬ 
come the addition, and incarceration at substantial cost to both the offender and 
the criminal justice system. 

D. Boot Camps 

Also known as “shock incarceration,” boot camps are designed to combine sub¬ 
stance abuse treatment with restricted, military-style, group living, generally for 
3-6 months. Participants must follow strictly regimented schedules that include 
military drills and ceremony, physical training, manual labor, educational and 
vocational training, and, often, substance abuse education and treatment. The 



296 


Porter 


sanction is designed for young offenders, generally between the ages of 16 and 
24, with the assumption that these offenders are more likely to change their atti¬ 
tudes than an older population. Participants are expected to develop both disci¬ 
pline and accomplishment as a result of the intensive schedule and strict manage¬ 
ment. While outcome evaluations have indicated little differences in rearrest 
between boot camp graduates and matched comparisons of regular inmates, well 
over half the states currently maintain boot camps as part of their sentencing 
options. There is little evidence that the sanctions yields cost savings when oper¬ 
ated as front-end programs, that is, programs in which entry is controlled by 
judges. However, when corrections officials control program entry (back-end pro¬ 
grams), boot camps may result in shorter prison stays and a corresponding reduc¬ 
tion in prison costs. The severity of the boot camp sentence may help to avoid net- 
widening by ensuring court actors that the sentence is strong enough for serious 
offenders. In this case, the shorter length of boot camps could result in significant 
cost-savings, particularly if they are utilized, as in New York State, for large 
numbers of offenders. However, the severity of the boot camp sentence has been 
questioned as abuses by guards have surfaced in several states. 

Individual boot camps differ in the amount of education and substance 
abuse they provide, and several states have implemented boot camps without 
strict military structure. While deterrence and rehabilitation are commonly cited 
goals, there is little evidence that the features differentiating boot camps from 
other correctional options are intrinsically better suited to either reducing reof¬ 
fending or to rehabilitating program participants. While proponents of boot camps 
say the sentence introduces structure into the young offenders life, helps them 
“get off” of drugs, and become physically fit, there is not enough follow-up 
research to know if any of these accomplishments actually result in lifestyle 
changes once the participant returns to the community. The work required of 
participants is generally menial (such as maintenance), and therefore does not 
build skills that can be readily used to find sustained employment, which is often 
cited as a key factor in maintaining a crime-free lifestyle. Aftercare treatment 
appears to increase the rehabilitative effect of boot camps, and has been imple¬ 
mented in many states. The popularity of boot camps likely reflects an interest, 
on the part of policy makers and voters, in providing a rigorous experience to 
“shock” conflicted offenders into rehabilitation, in much the same way that the 
military is considered a useful place to foster discipline in young adults. 

The problem with utilizing boot camps to socialize delinquent youth is that 
it encourages judges to utilize the sanction for fairly low-level offenders who 
would otherwise serve short prison terms. In order for boot camps to reduce 
prison costs and reoffending, research indicates that they should be used for of¬ 
fenders who would otherwise serve prison terms of at least 1 year. This is because 
boot camp participants are likely to be supervised more closely than regular in¬ 
mates and parolees, and are likely to be penalized more severely, often resulting 



Alternatives to Incarceration 


297 


in program failure and return to prison. Even low-level offenders could be sent 
to prison for relatively minor program infractions, and as a result serve a longer 
sentence (first in boot camp then in prison) than they would have had they been 
sentenced directly to prison. In order for boot camps to succeed in reducing prison 
costs, they need to be used for more serious offenders. In practical terms, this 
means that corrections officials rather than judges should control program entry. 
They should also seek to reduce in-program and postrelease failures by ad¬ 
dressing program infractions within the boot camp, rather than sending a person 
to prison, and by adopting postrelease monitoring practices that are flexible 
enough to avoid excessive use of return to custody. Finally, it is critical to imple¬ 
ment high-quality aftercare for participants upon release from boot camps, partic¬ 
ularly linkages with employment and other social service agencies. 


III. FACTORS IN ATI IMPLEMENTATION 

A. Judicial Discretion: Mandatory Minimum Sentences 
and ATIs 

Research shows that the court system has natural flexibility: judges, prosecutors, 
and defense attorneys each compromise in disposing high numbers of cases as 
expediently as possible. To maintain this arrangement, neither the district attorney 
nor the defense attorney should have too much influence on sentence outcome, 
thus preserving judicial discretion in determining the case disposition. However 
the late 1980s saw a great deal of this flexibility undermined when a dispropor¬ 
tionate amount of discretion in sentencing was transferred to prosecutors as a 
result of sentencing guidelines and mandatory minimums adopted at both federal 
and state levels. 

Legislation has been adopted that specifies sentences for many felony of¬ 
fences including drug crimes, violent crimes, repeat offenders, and crimes com¬ 
mitted near schools. These sentencing guidelines attempt to systematize the rela¬ 
tionship between offense and sanction by specifying sentences for crimes, 
curtailing judicial discretion. Mandatory minimums require judges to impose at 
least the minimum specified sentence and thereby restrict the ability of the judge 
to respond to the offense. Policymakers can point to mandatory minimum legisla¬ 
tion as an example of strict law enforcement. Because mandatory minimum sen¬ 
tences require DA approval for nonincarceration sentences, these sentencing deci¬ 
sions are less likely to occur. By centering the decisionmaking process in the 
district attorney’s office, mandatory minimums result in greater use of incarcera¬ 
tion. Today, the United States uses incarceration to dispose of roughly one-third 
of all criminal cases, a figure that is uniquely high among industrialized nations 
(Mauer, 1997). However it is not clear that these higher rates of imprisonment 
correlate with lower levels of offending. 



298 


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B. Cost-Savings and Net-Widening 

A principal goal of ATI development is to save the costs of incarceration. Drug 
treatment programs in particular tout the fractional cost of a year in treatment 
compared with a year in prison. This argument makes intuitive sense, since pris¬ 
ons require both infrastructure and staff far beyond the needs of a social service 
provider. However, this argument is flawed in two respects it assumes a set (high) 
value for each prison year averted; and, it assumes that each person who sen¬ 
tenced to an ATI would otherwise be incarcerated. As it turns out, both points 
are far from certain. 

Advocates of alternatives to incarceration frequently cite savings in jail and 
prison beds as reason to support nonincarceration sentences. Jail and prison costs 
per inmate are high (generally ranging from $20,000 to over $50,000 annually), 
and significantly higher than the cost of alternative sentences per individual (gen¬ 
erally $1000-$20,000). However, each individual kept out of jail or prison as a 
result of ATI utilization does not result in the corresponding dollar savings. Pris¬ 
ons operate according to economies of scale, which means that small changes 
account for proportionally fewer savings than large changes. As Tonry (1996) 
points out, a program that serves 50 people annually can at best only divert 50 
people, which is a tiny portion of the population served by most prison systems. 
The department of corrections will save money on laundry, food and other indi¬ 
vidual supplies, but it will not save money on the larger costs such as staff, 
maintenance, and insurance; nor will it significantly reduce prison overcrowding. 
Any reduction in costs associated with small-scale programs will cause only mar¬ 
ginal reductions in state spending on corrections. In order to achieve significant 
savings, the state must reach a magnitude threshold, which means a commitment 
to implementing ATIs for high numbers of offenders. Even this approach is un¬ 
likely actually to reduce incarceration rates. However, ATIs implemented on a 
large scale could successfully stop incarceration growth. 

A second issue in measuring cost is the problem of net-widening, which 
we have seen occur when judges and district attorneys who control ATI utilization 
view the programs as alternatives to probation rather than as alternatives to incar¬ 
ceration. In such a situation the ATI sentence is imposed as one that is more 
restrictive than the traditional sentence. Court actors might adopt this approach 
for at least three reasons. First, court caseloads may be so high, and prison capac¬ 
ity so limited, that judges or DAs feel obliged to release low-level offenders on 
probation, but may be dissatisfied with what they perceive as too lenient a sanc¬ 
tion. Second, judges and DAs, as elected officials, may feel intense political and 
social pressure to mandate the most restrictive sentence possible in order to avoid 
blame in the event that a defendant reoffends. Finally, court actors may want to 
address the clear need for offender rehabilitation, and may jump at the chance 
to provide the kind of services associated with an alternative program. 



Alternatives to Incarceration 


299 


The long-term social costs associated with imprisonment are difficult to 
estimate. Arguments have been made that such costs tire gigantic, encompassing 
child welfare, loss of productivity and income, and the even more elusive costs 
associated with the loss of social cohesion that accompany the incarceration of 
a significant portion of the community (e.g., Vera Institute, 1996). Advocates 
argue that ATIs provide a punishment that is more socially productive than 
prison. However, that position is less one of concrete economic analysis and 
more a theoretical challenge to the focus on incapacitation and the corresponding 
exclusion of all other incarceration outcomes. 

We have also seen how ATIs add costs to the criminal justice system, 
increasing surveillance costs, and heightening incarceration costs when offenders 
are returned to custody for small violations. For this reason, enforcement deci¬ 
sions should be made based on both the extent of compliance (how much, under 
what auspices, etc.), and on enforcement response: Is there a range of options, 
or is any infraction considered a violation and the offender remanded? These 
issues can be negotiated early in the implementation, and will affect the final 
determination of ATI success. 

While cost-containment is an important consideration in any new policy 
initiative, it is complex, and results do not clearly support ATI utilization. Reli¬ 
able cost-saving analyses are rarely completed, and when they are they may show 
that an ATI costs more money. The reality is that the ATI philosophy is strongly 
grounded in the idea that offenders need direct services in order to stabilize their 
lives, and this approach demands a serious allocation of resources. The cost of 
imprisonment remains an important factor to consider in deciding appropriate 
sentencing options. However, cost alone should not be the primary motivation 
for implementing ATIs. 

C. Parsimony and Punishment 

In his lectures on imprisonment, Norval Morris (1974) urges three considerations 
in any decision to incarcerate: parsimony, dangerousness, and dessert. These prin¬ 
ciples may fail to influence penal policy, which, as stated earlier, is more likely 
to focus on retribution. However, it is important to consider the social conse¬ 
quences of incarceration if we are to consider thoughtfully the challenge of crime 
in a free society: a mission defined in 1967 by the President’s Commission on 
Law Enforcement and Administration of Justice. 

Parsimony is the principle that a society shall impose no suffering beyond 
what is necessary to achieve the collective good. The application to criminal law 
is clear: a sanction that is unduly severe is one that is cruel and inhumane, and 
ought to be rejected. So the question becomes: Is incarceration unduly severe? 
In order to respond, we must consider the severity of the offense and the condi¬ 
tions to which an inmate is subject. Conditions vary inevitably, and prisons and 



300 


Porter 


jails span a range of comfort levels. However many of the prisons housing in¬ 
mates convicted of low-level felony offences are not even minimally comfortable. 
These prisons are frequently overcrowded; services are commonly restricted so 
that inmates have only minimal time to eat, shower, and exercise; and inmates 
may be housed far from their home counties, effectively preventing contact with 
family members. In addition to these common realities, reports of abuses of au¬ 
thority are all too common, from the use of inappropriate restraints to beatings, 
and inmates may be subject to staggering deprivation (Amnesty International, 
1998). 

Given the realities of prison conditions today, we may legitimately ask 
whether incarceration is not a disproportionately severe punishment for offenses 
such as drug sale or nonviolent theft. Clearly, some offenses warrant severe re¬ 
striction. Violent offenses have been shown to be good predictors of future vio¬ 
lence, so using instant offense to determine risk for reoffending is supported. 
However, over half the inmates in state prisons were convicted of nonviolent 
offences (BJS, 1998), and even among violent offences, some crimes, notably 
robbery, may be classified as violent although no actual violence occurred. This 
is the pool from which an ATI population may be drawn. Alternatives to incarcer¬ 
ation provide punishments that are appropriate for these offenders, and strengthen 
the integrity of the criminal justice system as a whole. 


IV. CONCLUSION 

Integrity is an apt concept with which to conclude. ATIs are a tiny component 
of the gigantic nonsystem that is corrections. They seek to cut the rate of incarcer¬ 
ation for offenders and maintain the public safety. They can be implemented to 
address specific needs only if those needs are clear. If they are to succeed ATIs 
require commitment, compromise, labor, and money from all the criminal justice 
stakeholders who create and accept them. Finally, their successful implementa¬ 
tion will depend on the willingness of policymakers and court actors to rethink 
the primacy of prison in American penal philosophy. 


ACKNOWLEDGMENT 

The author is grateful to Douglas Young for his thoughtful comments and insight. 


REFERENCES AND SELECTED READINGS 


Amnesty International (1998). Rights for All: The United States. Amnesty International, 
New York. 



Alternatives to Incarceration 


301 


Anglin, M. D. (1988). The efficacy of civil commitment in treating narcotic addiction, 
in Compulsory Treatment of Drug Abuse: Research and Clinical Practice (NIDA 
Research Monograph Series #86), C. Leukefeld and F. Tims, (eds.), US Govern¬ 
ment Printing Office, Washington, DC, pp. 8-34. 

Anglin, M. D, and Hser, Y. I. (1990). Legal coercion and drug abuse treatment: Research 
findings and social policy implications, in Handbook of Drug Control in the United 
States, J. Inciardi, ed.. Greenwood Press, New York, pp. 151-176. 

Austin, J. and Irwin, J. (1993). Does Imprisonment Reduce Crime? A Critique of “Voo¬ 
doo” Criminology, National Council on Crime and Delinquency, San Francisco. 

Belenko, S. (1996). Comparative Models of Treatment Delivery in Drug Courts, Prepared 
for The Sentencing Project. New York City Criminal Justice Agency, New York. 

Bureau of Justice Assistance. (1994). Treatment, Rehabilitation and Education: High¬ 
lighted State and Local Programs, Office of Justice Programs. Washington. 

Bureau of Justice Statistics. (1998). Prisoners in 1997, Office of Justice Programs, Wash¬ 
ington, D.C. 

Caulkins, J. P., et al. (1997) Mandatory Minimum Drug Sentences: Throwing Away the 
Key or the Taxpayers' Money ? Rand, Drug Policy Research Center, Santa Monica. 

Clear, T. (1996) Backfire: When incarceration increases crime, in The Unintended Conse¬ 
quences of Incarceration, Vera Institute of Justice, New York. 

Condelli, W. S., and De Leon, G. (1993). Fixed and dynamic predictors of client retention 
in therapeutic communities, J. Substance Abuse Treat. 10: 11-16. 

Cowles, E. L., Castellano, T. C., and Gransky, L. A. (1995) “Boot camp” Drug Treatment 
and Aftercare Interventions: An Evaluation Review, USDOJ, NIJ, Washington. 

Curry, S., Marlatt, G. A., Peterson, A., and Lutton, J. (1988). Survival analysis and assess¬ 
ment of relapse rates, in Assessment of Addictive Behaviors. D. Donovan and 
G. A. Marlatt, eds., Guilford Press, New York. pp. 454-473. 

De Leon, G., Melnick, G., Kressel, D., and Jainchill, N. (1994). Circumstances, motiva¬ 
tion, readiness, and suitability (the CMRS scales): Predicting retention in therapeu¬ 
tic community treatment. Am. J. Drug Alcohol Abuse 20(4): 495-515. 

DiMascio, W. M., and Mauer, M. (1997) Seeking Justice: Crime and Punishment in 
America, The Edna McConnell Clark Foundation, New York. 

Fagan, J. (1990). Intoxication and aggression, in Crime and Justice: An Annual Review 
of Research, vol. 13, M. Tonry and J. Q. Wilson, eds., University of Chicago Press, 
Chicago, pp. 241-320. 

Fagan, J. (1994). Do criminal sanctions deter drug crimes? in Drugs and Crime: Evaluat¬ 
ing Public Policy Initiatives, D. L. MacKenzie and C. Uchida, eds.. Sage, Thousand 
Oaks, CA, pp. 188-214. 

Falkin, G. (1993). Coordinating Drug Treatment for Offenders: a Case Study. Prepared 
for the National Institute of Justice, National Development and Research Institutes, 
Inc, New York. 

French, M. T„ Zarkin, G. A., Hubbard, R. L., and Rachal, J. V. (1993). The effects of 
time in drug abuse treatment and employment on post-treatment drug use and crimi¬ 
nal activity, Am. J. Drug Alcohol Abuse, 19: 19-33. 

Goldkamp, J., S. (1994). Miami’s treatment drug court for felony defendants: Some impli¬ 
cations of assessment findings, Prison J. 73: 110-166. 

Gostin, L. (1991). Compulsory treatment for drug-dependent persons: Justifications for a 
public health approach to drug dependency, Milbank Q. 69: 561-592. 



302 


Porter 


Greenwood, P. W. (1995). Strategies for improving coordination between enforcement 
and treatment efforts in controlling illegal drug use, J Drug Issues 25: 73-89. 

Hynes. C. J., and Powers, S. A. (1996). Drug Treatment Alternative-to-Prison of the Kings 
County District Attorney, Sixth Annual Report. 

MacKenzie, D. L., and Souryal, C. (1994) Multisite Evaluation of Shock Incarceration, 
USDOJ, National Institute of Justice, Washington, DC. 

Martin, S., and Inciardi, J. (1993). Case management approaches for criminal justice cli¬ 
ents, in Drug Treatment and Criminal Justice, J.A. Inciardi, ed.. Sage Publications, 
Newbury Park, 27: 81-96. 

Mauer, M. (1997) Americans Behind Bars: U.S. and International Use of Incarceration, 
The Sentencing Project., Washington, D.C. 

McDonald, D. C. (1986). Punishment Without Walls: Community Sendee Sentences in 
New York City. Rutgers University Press, New Brunswick. 

Morris, N. (1974). The Future of Imprisonment. University of Chicago Press, Chicago. 

Morris, N., and Tonry, M. (1990). Between Prison and Probation. Oxford University 
Press, New York. 

President’s Commission on Law Enforcement and Administration of Justice. (1967). The 
Challenge of Crime in a Free Society, U.S. Government Printing Office, Washing¬ 
ton D.C. 

Tauber, J. S. (1993). The Importance of Immediate and Intensive Intervention in a Court- 
Ordered Drug Rehabilitation Program. An Evaluation of the F.I.R.S.T. Diversion 
Project After Two Years, Presented to the President’s Commission on Model State 
Drug Laws, Philadelphia, P.A. 

Taxman, F. S., and Lockwood, D. (1996). Systemic case management practices: The 
HIDTA seamless system approach. Preliminary Overview ofHIDTA Treatment and 
Criminal Justice Initiative, Prepared for the Office of National Drug Control Policy. 
University of Maryland, College Park. 

Tonry, M., and Lynch, M. (1996). Intermediate sanctions, in Crime and Justice: A Review 
of Research, vol. 20, M. Tonry, ed.. University of Chicago Press, Chicago, IL. 

Tonry, M. (1998). Intermediate sanctions in sentencing guidelines, in Crime and Justice: 
A Review of Research, vol. 23, M. Tonry, ed.. University of Chicago Press, Chicago. 

Turner, S. (1996). Services received and TASC effects on drug use and crime. Findings 
from Studies of the Functioning and Effectiveness of TASC Programs. Presented 
at the National TASC Drugs and Crime Conference, Chicago. 

Turner, S., Petersilia, J., and Deschenes, E. P. (1994). The implementation and effective¬ 
ness of drug testing in community supervision: Results of an experimental Evalua¬ 
tion, in Drugs and Crime, D. MacKenzie and C. Uchida, eds., Sage, Thousand 
Oaks, CA, pp. 231-252. 

Vera Institute of Justice (1996). The Unintended Consequences of Incarceration, Vera 
Institute of Justice, New York. 

von Hirsh, A. (1976) Doing Justice: The Choice of Punishments, Hill and Wang, New 
York. 

Wilson, W. J. (1987). The Truly Disadvantaged, University of Chicago Press, Chicago. 



17 

Prisoner Rights 


Katherine J. Bennett 

Armstrong Atlantic State University, Savannah, Georgia 

Craig Hemmens 

Boise State University, Boise, Idaho 


I. INTRODUCTION 

This chapter contains an overview of the constitutional rights of prisoners, includ¬ 
ing the right to treatment, the prohibition on “cruel and unusual” punishment, 
due process requirements, and the application of the exclusionary rule. Leading 
Supreme Court cases are discussed as well as recent limitations on inmate litiga¬ 
tion and significant emerging issues. 

A criminal offender possesses two types of rights: substantive rights and 
procedural rights. Substantive rights are those rights created and defined by stat¬ 
ute, such as contract law, tort law, and criminal law. Substantive law prescribes 
and proscribes various types of conduct. Procedural rights are those rights gener¬ 
ally classified under the concept of “due process” in the Fifth and Fourteenth 
Amendments (LaFave, 1996). When a person is entitled to due process of law, 
it means that there are certain rules and procedures that the state must follow. 
Essentially, the substantive law delineates the rules by which all members of 
society must play, while procedural law delineates the rales by which the govern¬ 
ment must play when dealing with a citizen’s liberty. 


II. HISTORICAL OVERVIEW 

At early common law and until the middle part of the 20th century, criminal 
justice offenders had few rights. The Bill of Rights, with its protections of individ- 


303 



304 


Bennett and Hemmens 


ual rights against search and seizure, self-incrimination, and cruel and unusual 
punishment, for example, applied only to the federal government, not the states 
(Barron v. Baltimore, 1833). Because today’s exclusionary rule and Miranda 
warnings did not exist, individuals, once incarcerated, lost virtually all of their 
rights and found themselves at the mercy of correctional personnel. Those con¬ 
victed of crimes were often treated as “slaves of the state” (Ruffin v. Common¬ 
wealth, 1871). Most states had “civil death” statutes that stripped convicted 
individuals of most of their civil rights, such as the right to vote or hold elective 
office. This loss of rights was justified as a part of the punishment for committing 
a crime. 

Courts took what was referred to as a “hands-off” approach to the rights 
of prisoners, choosing not to become involved with the affairs of corrections 
agencies, which were part of the Executive branch of government (Cripe, 1997). 
Courts reasoned that correctional administrators were better equipped to deal with 
prisoners than were judges and that judicial involvement, through the hearing of 
inmate complaints, would unnecessarily complicate relations between the Execu¬ 
tive and Judicial branches of government. If prisoners had no rights, then courts 
need not oversee correctional agencies dealing with prisoners. 

By the 1940s, however, courts began paying closer attention to the rights 
of prisoners, as part of a growing trend toward increased protection of individual 
rights. In 1941 the Supreme Court in Ex parte Hull held that inmates had a right 
to unrestricted access to Federal courts. This decision signaled the beginning of 
the end of the “hands-off” doctrine and the beginning of the era of judicial 
intervention in corrections. In 1944 in Coffin v. Reichard, a Federal district court 
expanded the scope of habeas corpus to include lawsuits filed by inmates that 
did not challenge their confinement but the conditions of their confinement. 

The Civil Rights movement of the 1960s and a change in the membership 
of the Supreme Court resulted in tremendous changes in criminal justice proce¬ 
dure and correctional practices. Under Chief Justice Earl Warren, the Court ex¬ 
tended a number of protections to criminal defendants, including the exclusionary 
rule, the Miranda warnings, and the right to counsel (Domino, 1994). The Su¬ 
preme Court also began to extend protection of individual rights to those con¬ 
victed of crimes. The Court focused on due process and, in a line of cases, re¬ 
quired correctional administrators at all levels, from prison to probation to parole, 
to accord basic procedural rights to criminal justice offenders (Palmer, 1997). 

Following the high court’s lead, lower Federal courts became more re¬ 
ceptive to lawsuits brought by prisoners challenging the conditions of their con¬ 
finement. In Holt v. Sarver (1969), a Federal district court in Arkansas determined 
that inmates could challenge as unconstitutional not merely individual practices 
but also the totality of the prison’s conditions. This form of suit became known 
as a “conditions of confinement” lawsuit. Federal district courts, formerly abso¬ 
lute in their deference to the wisdom of correctional administrators, became inti- 



Prisoner Rights 


305 


mately involved in the monitoring and operation of entire prison systems. In 1976 
the Supreme Court, in Estelle v. Gamble, held that correctional administrators 
could be held liable for injury to an inmate if the administrators displayed “delib¬ 
erate indifference” to the situation. While this has proven a fairly difficult stan¬ 
dard for inmate plaintiffs to meet, it is nonetheless a far cry from the days of 
Ruffin v. Commonwealth when inmates were seen literally as “slaves of the 
state.” Recently, as the membership of the Supreme Court has become more 
conservative, the high court has been less receptive to the complaints of inmates 
and has declined to extend further the protections accorded to inmates (Sandin 
v. Conner, 1995). The current era has been described as the “one hand on/one 
hand off era” (Cornelius, 1997). 


III. PRISONERS’ RIGHTS 

Legal challenges brought by inmates alleging constilutional deprivations most 
often focus on the First, Fourth, Eighth, and Fourteenth Amendments (Welch, 
1996) with the courts attempting to balance the individual rights of inmates and 
the authority of correctional administrators. 

The following section will discuss inmate rights, including the right to treat¬ 
ment, access to legal services, First Amendment freedoms, the Fourth Amend¬ 
ment prohibition on unreasonable searches and seizures. Fifth and Sixth 
Amendment rights, the Eighth Amendment prohibition of cruel and unusual 
punishment, and due process rights in the areas of disciplinary hearings and 
parole revocation hearings. 


A. Right to Treatment 

While a light to treatment is not mentioned in the text of the Constitution, courts 
have made it clear that inmates and those under civil commitment do enjoy a right 
to treatment. The rationale behind mandating a right to treatment for incarcerated 
persons is that because the state has restricted their liberty, they are unable to 
obtain medical services on their own initiative. Thus the state must accept respon¬ 
sibility for their medical well-being. This treatment need not be the best that 
science has to offer; rather, it is enough if the state provides reasonable care. A 
recent study of inmates indicated that while approximately 80% of all inmates 
are in need of drug and alcohol treatment, fewer than 20% receive treatment while 
incarcerated, due in large part to the limit on institutional resources (General 
Accounting Office, 1991). Courts have yet to mandate such treatment, although 
President Clinton’s 1999 budget proposed funding ‘ ‘coerced abstinence and treat¬ 
ment” initiatives in correctional facilities (Corrections Alert, 1998). 



306 


Bennett and Hemmens 


Under Estelle v. Gamble (1976), the state may not be held liable for mere 
negligent treatment. Liability is incurred only if there is evidence similar to reck¬ 
lessness or intentional disregard for the client on the part of the state (deliberate 
indifference). As an example, courts have generally ruled that not allowing in¬ 
mates to be examined by independent doctors does not constitute deliberate indif¬ 
ference ( Lewal v. Tippy, 1998). Conversely, nonsmoking inmates suffering from 
emphysema and housed with smokers may prove deliberate indifference if they 
can show that officials are aware of the risk to them and have disregarded that 
risk. 

The Supreme Court held in Washington v. Harper (1990) that an institu¬ 
tionalized person does not have an absolute right to refuse treatment if that refusal 
poses a danger to that inmate or others and that the treatment is in that individual’s 
best medical interest. While the issue discussed was not a treatment per se, a 
recent district court ruling upheld tuberculosis testing against an inmate’s will, 
noting the state’s legitimate interest in safeguarding inmates and staff from infec¬ 
tious diseases (“In the Courts,” 1998). Appellate courts have also upheld state 
statutes mandating completion of treatment programs before sex offenders may 
be considered for parole (Neal v. Shimoda , 1997). 

B. Access to Legal Services 

Access to the courts was one of the first constitutional rights that the Supreme 
Court extended to prisoners in Ex pane Hull (1940). According to the Court, 
access to the court system is a basic requirement of due process. The question 
that courts have dealt with since the decision in Hull is what exactly constitutes 
“access.” The major case in this area is Johnson v. Avery (1969), in which the 
Supreme Court held that a prison regulation prohibiting inmates from assisting 
other inmates in the preparation of legal materials was unconstitutional if there 
was no reasonable alternative for inmates to obtain access to the courts. The 
result is that correctional administrators either have to allow ‘ ‘jailhouse lawyers” 
to help other inmates or to provide some sort of alternative legal assistance pro¬ 
gram. Prison officials may restrict the amount of legal material possessed by an 
inmate or the time and place for legal assistance, as long as such limitations are 
reasonable. 

Until recently, it was assumed by many lower courts that another decision 
of the Supreme Court, Bounds v. Smith (1977), required prison administrators to 
provide inmates with either law libraries or access to persons with legal training. 
In Lewis v. Casey (1996), however, the Supreme Court clarified its earlier deci¬ 
sion in Bounds, holding that evidence of inadequacies in the delivery of legal 
services is not enough to justify remedial action by the courts. According to the 
Court, such action is justified only when an inmate’s efforts to pursue a legal 
claim are in fact impaired by lack of access to legal materials. 



Prisoner Rights 


307 


C. The First Amendment 

The First Amendment includes several separate individual rights, including free¬ 
dom of religion, freedom of speech and the right to assemble peaceably. The 
following sections discuss inmate rights pertaining to freedom of religion, free¬ 
dom of speech, including personal correspondence and telephone privileges, and 
freedom of assembly. 

1. Freedom of Religion 

Religious freedoms guaranteed by the First Amendment of the Constitution ex¬ 
tend to inmates, including those who practice nontraditional or non-Westem reli¬ 
gions. In 1972 the Supreme Court ruled in a landmark case involving an inmate 
of the Buddhist faith that all inmates must be afforded the opportunity to practice 
unconventional religious beliefs, comparable to the opportunity given to inmates 
of conventional religious beliefs ( Cruz v. fie to, 1972). This ruling did not mean 
that places of worship for every religious faith have to be provided; instead, one 
place of worship must be available for use by the various religious groups in the 
institution (del Carmen et al., 1998). Courts have also specified that prison offi¬ 
cials must make reasonable arrangements for the dietary and other needs of Mus¬ 
lims and orthodox inmates of other religions, such as Judaism (Welch, 1996). 

However, when religious rights have been restricted in the interest of main¬ 
taining institutional security and discipline, courts have typically upheld those 
restrictions. The Supreme Court has held that prison officials have the right to 
regulate religious activity in order to promote valid interests such as security, 
discipline, limited resources, and inmate and correctional officer safety {O’Lone 
v. Estate ofShabazz, 1987). Lower courts have generally deferred to the wisdom 
of correctional administrators when limitations on religious freedom are based 
on such grounds. The rule of thumb appears to be that, when ‘ ‘one religious group 
is permitted to engage in a particular activity, the same right must be accorded all 
other religious groups within the institution” (Palmer, 1997). 

O’Lone v. Estate of Shabazz (1987) was decided one week after the Su¬ 
preme Court’s decision in Turner v. Safley (1989), the landmark case for estab¬ 
lishing standards for restricting prisoners’ constitutional rights. In Turner, the 
Supreme Court upheld prison regulations that impinge on inmates’ constitutional 
rights if those regulations are ‘ ‘reasonably related to legitimate penological inter¬ 
ests” {Turner at 2254). The Court enumerated four factors to be used when 
applying this test: 

1. Existence of valid rational connection between prison regulation and 
legitimate governmental interest put forward to justify it 
Existence of alternative means of exercising rights remaining open to 
prison inmates 


2 . 



308 


Bennett and Hemmens 


3. Impact that accommodation of asserted constitutional rights will have 
on guards and other inmates and on allocation of prison resources gen¬ 
erally 

4. Absence of ready alternatives as evidence of the reasonableness of the 
regulation ( Turner at 2262) 

Applying the Turner test to the alleged freedom of religion violation in the 
O’Lone case, the Court upheld the district court’s ruling that prison work policies 
preventing Islamic inmates from being able to attend Friday afternoon religious 
services did not constitute constitutional violations and were reasonably related 
to legitimate penological interests. 

Inmates of non-Western religious faiths have raised constitutional viola¬ 
tions with respect to cross-gender searches and observation of nude inmates. For 
example, Islamic inmates have stated that such searches violate religious tenets 
forbidding physical contact with women other than wives or mothers, and have 
cited the modesty requirements of their faith (Bennett, 1995). Courts, however, 
have consistently noted that such intrusions are justified by state interests of pro¬ 
viding adequate prison security and equal employment opportunities for female 
correctional officers (see e.g., Madyun v. Franzen, 1983). 

In 1993 Congress passed the Religious Freedom Restoration Act (RFRA), 
placing a heavier burden on the government than that required by Turner. 
Whereas Turner urged courts to apply ‘ ‘great deference” to correctional officials’ 
judgments, RFRA stated that the “government may substantially burden a per¬ 
son’s exercise of religion only if it is in furtherance of a compelling governmental 
interest; and is the least restrictive means of furthering that compelling govern¬ 
mental interest” (PL 103-141 (HR 1308)). From 1993 to 1997, the test for alleged 
violations of religious practices was thus no longer the Turner test but this height¬ 
ened standard. The Supreme Court recently overturned RFRA ( City of Boerne 
v. Flores, 1997), ruling that Congress violated separation of power principles in 
enacting RFRA. 

Shortly after RFRA was overturned by the Supreme Court, President Clin¬ 
ton issued as executive order re-establishing RFRA's compelling interest/least 
restrictive means test for federal agencies. Thus, RFRA’s standard is still binding 
for the federal Bureau of Prisons. Some writers note that RFRA’s standard is not 
a new, impossible standard and actually had been the controlling legal standard 
in prisons for 20 years until the “rational basis” test of the 1987 Turner and 
O’Lone decisions (Jaroslawicz, 1996). 

Generally, for state prison administrators RFRA’s repeal reinstates the 
Turner test for evaluating the constitutionality of restrictions on religious prac¬ 
tices in prisons. A prisoner’s right to practice religion is still protected by the 
First Amendment as long as that practice does not interfere with institutional 
safety. In general, correctional administrators support inmates’ religious prac- 



Prisoner Rights 


309 


tices, “since studies have shown that religion can positively impact an inmate’s 
behavior, both inside the facility and upon release” (deGroot, 1997). More diffi¬ 
cult questions have been what exactly constitutes a “religion” or “religious ac¬ 
tivity,” requiring courts to examine “newly established religions” for religious 
sincerity and the existence of genuine devotion to particular religions. 

2. Freedom of Speech 

As with religious practices, prison officials may restrict freedom of expression 
if such restrictions are related to prison security and safety. Such security issues 
as smuggling contraband into or out of a prison and planning escapes justify the 
need for reading and inspecting inmate mail (Welch, 1996). The right to receive 
and send mail is subject to reasonable restrictions as formulated in Turner, a case 
that specifically challenged inmate-to-inmate correspondence regulations. The 
Court ruled that restrictions on inmate correspondence with other inmates are 
reasonably related to legitimate prison concerns. Federal Bureau of Prison regula¬ 
tions that restrict the receipt of publications from the outside world have also 
been upheld by the Court ( Thornburgh v. Abbott, 1989). 

Courts have also determined that inmates have a protected First Amend¬ 
ment right to telephone access. Such access, however, is subject to reasonable 
limitations related to legitimate security interests (Palmer, 1997). 

3. Freedom of Assembly 

While a judge surmised in 1972 that legitimate inmate unions were “inevitable” 
(Goodwin v. Oswald at 1246), regulations prohibiting prison unions are constitu¬ 
tional. In Jones v. North Carolina Prisoner Union (1977), the Supreme Court 
determined that prison regulations banning inmate solicitation of other inmates 
to join a prisoner union, union meetings, and mailings about the union were 
constitutional regulations and thus not in violation of First Amendment rights. 
The prison officials successfully claimed that inmate unions pose a threat to secu¬ 
rity (Palmer, 1997). 


D. The Fourth Amendment 

The right of an individual to be free from unreasonable searches and seizures, 
provided in the Fourth Amendment and made applicable to the states by the due 
process clause of the Fourteenth Amendment, has obviously limited application 
to the institutional setting. Inmates are subject to searches of their person, belong¬ 
ings, and cells without warrant or probable cause. Courts recognize that the 
unique security needs of the institution outweigh the individual rights of the in¬ 
mate (Block v. Rutherford, 1984). 



310 


Bennett and Hemmens 


Inmates have unsuccessfully litigated alleged Fourth Amendment viola¬ 
tions with respect to incidental observation of nude male inmates by female 
guards. While district courts have stated that inmates possess privacy rights under 
the Fourth Amendment, including the right not to be viewed naked by the oppo¬ 
site sex, the courts acknowledge that ‘ ‘the right of privacy exists only so far as 
it is not fundamentally inconsistent with prisoner status or incompatible with 
legitimate objectives of incarceration” (Johnson v. Pennsylvania Bureau of Cor¬ 
rections, 1987; Bennett, 1995). Male inmates invoking Fourth Amendment rights 
to be free from unreasonable searches in situations involving frisk searches by 
female correctional officers have been unsuccessful also. Strip searches may be 
justified in emergency situations, although use of same-sex officers to conduct 
such searches is preferable (Bennett, 1995). 

E. The Fifth and Sixth Amendments 

The Supreme Court has accorded criminal suspects the right to be informed of 
their Fifth and Sixth Amendment rights, such as the right to counsel and the 
privilege against self-incrimination prior to custodial interrogation. The Court 
created the so-called Miranda warnings because it felt that they were necessary 
to secure effectively a criminal suspect’s privilege against self-incrimination. 
Prior to the Miranda v. Arizona (1966) decision, the Court focused on whether 
a statement was voluntary, that is, uncoerced by the police. The Court determined 
in Miranda that voluntariness alone was not enough. Because an incriminating 
statement was potentially devastating to a defendant, such statements should be 
admitted only if they were made freely and with full knowledge of one’s constitu¬ 
tional rights. 

Courts have refused to extend the Miranda warnings to interrogation of 
inmates, however. While the Supreme Court has not directly addressed the issue, 
most lower courts have held that Miranda warnings are not required before an 
inmate is questioned regarding a disciplinary infraction, primarily on the rationale 
that to require the warnings would do serious damage to the interest of institu¬ 
tional security (Palmer, 1997). 

F. The Eighth Amendment and “Cruel and 
Unusual” Punishment 

The Eighth Amendment prohibits ‘ ‘cruel and unusual’ ’ punishment. Exactly what 
is cruel and unusual has changed as society has evolved. The Supreme Court has 
applied the Eighth Amendment to a variety of situations in corrections, including 
the use of force on inmates. 

In general, every prisoner has the right to be free of both offensive bodily 
contact and the fear of offensive bodily contact (Palmer, 1997). Prison officials 



Prisoner Rights 


311 


are permitted to use reasonable force to maintain discipline and for protection. 
The force must be reasonable under the circumstances. Thus, prison officials may 
be justified in using extreme force, even deadly force;, if the situation warrants 
it. In addition, the Supreme Court has recently held that correctional personnel 
may be liable for failing to prevent harm to an inmate by another inmate but 
only if it can be demonstrated that employee conduct displayed “deliberate indif¬ 
ference” to the safety of the inmate (Farmer v. Brennan, 1994). 

While prison officials are allowed to use force when necessary to enforce 
prison regulations, courts have backed away from earlier decisions that upheld 
the practice of corporal punishment or the use of physical force to punish inmates 
for rules violations. While the Supreme Court has never expressly voided the 
practice, a number of lower courts have declared corporal punishment unconstitu¬ 
tional (Palmer, 1997). 

Related to corporal punishment is the age-old practice of punishing recalci¬ 
trant inmates by placing them in solitary confinement. Courts have consistently 
rejected the contention that solitary confinement is unconstitutional per se, but 
they have required that the conditions of solitary confinement must not be dispro¬ 
portionate to the offense; and that since solitary confinement is a punishment 
above and beyond the punishment of incarceration, basic due process protections 
must be provided, such as the right to a hearing before being sentenced to solitary 
confinement (Cripe, 1997). Under Sandin v. Conner (1996), the standard for eval¬ 
uating placement in segregation and what process is due is if the deprivation 
constitutes an atypical and significant hardship in relation to the ordinary inci¬ 
dents of prison life. 

An emerging area of liability for prison officials is the duty to protect incar¬ 
cerated inmates from themselves and each other. This traditionally has arisen in 
the context of inmate on inmate assaults, but the current health crisis resulting 
from acquired immunodeficiency syndrome (AIDS) has influenced this area. 
While the Supreme Court has recently reiterated its support for the ‘ ‘deliberate 
indifference” standard of liability (Wilson v. Seiter, 1991), as the spread of com¬ 
municable diseases such as AIDS and tuberculosis increases, more lawsuits are 
being filed alleging Eighth Amendment violations and challenging correctional 
policies regarding segregation, treatment, and disclosure of information on human 
immunovirus-infected inmates (Haas, 1993). 

G. Due Process Rights in Disciplinary Hearings 

An area of correctional administration that has received a good deal of attention 
from the courts is the process by which inmates are disciplined. Discipline is 
obviously an important element of security maintenance in the correctional insti¬ 
tution. The courts require correctional administrators to provide “due process of 
law” to inmates involved in disciplinary proceedings. This means that before 



312 


Bennett and Hemmens 


punishment can be meted out, certain procedures must be followed to ensure that 
inmates are treated fairly. 

In Wolff v. McDonnell (1974), the United States Supreme Court held that 
due process in prison disciplinary proceedings entails: providing the inmate with 
written notice of the charges against him or her, providing an opportunity for 
the inmate to present evidence and witnesses in defense, providing the assistance 
of staff or a fellow prisoner in compiling evidence if the inmate needs such assis¬ 
tance, and providing to the inmate a written statement from the disciplinary board 
explaining its findings. The Court did not require that the inmate be allowed 
to cross-examine witnesses or be provided with counsel. Recent Second Circuit 
decisions regarding alleged violations of due process in disciplinary confinement 
have addressed the need to consider the duration of confinement and the distinc¬ 
tion between administrative and disciplinary confinement when determining if 
such confinement was an atypical and significant hardship ( Brooks v. DiFasi, 
1997; Wright v. Coughlin , 1998). 

H. Due Process Rights in Parole Hearings 

Historically, courts in this country have held that the decision to grant or deny 
parole or a pardon is a matter of executive discretion, implying that courts should 
not interfere in administrative decisionmaking. While there is no constitutional 
right to parole or sentence commutation, the Supreme Court has held that when 
parole is a possibility, correctional administrators must accord inmates due pro¬ 
cess. This merely requires that the parole board hold a hearing and provide the 
inmate with written reasons for its decision. 

In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex 
(1979), the Court held that under the Constitution inmates are not entitled to 
parole and that a discretionary parole release determination does not entitle in¬ 
mates to due process rights. However, the wording of a Nebraska statute provid¬ 
ing for parole did create entitlement to due process as a “state-created liberty 
interest.” Such liberty interests are created when state agencies choose to limit 
discretionary actions through statutes, rules, or regulations, resulting in limita¬ 
tions that must be followed and invoke due process protections (del Carmen et 
al„ 1996). 

In Connecticut Board of Pardons v. Dumschat (1981), the Court held that 
a state’s practice of granting approximately three-fourths of the applications for 
commutation of life sentences did not create either a “liberty interest” or an 
“entitlement” so as to require the parole board to explain its reasons for denying 
an application for commutation. 

While those convicted of a crime clearly do not retain all of their rights, 
the Supreme Court has made it clear that the Fifth Amendment’s due process 
clause does apply, not only during incarceration but also at probation and parole 



Prisoner Rights 


313 


revocation hearings (Hemmens and del Carmen, 1997). This is a significant 
change from prior practice. 

The Supreme Court held in the landmark case Morrissey v. Brewer (1972) 
that due process required that parole revocation procedures include at a minimum: 
written notice of the claimed parole violation, disclosure to the parolee of the 
evidence against him or her, an opportunity for the parolee to present evidence 
and witnesses and to be heard, the right of the parolee to confront and examine 
witnesses, a neutral and detached hearing body, and a written statement by the 
parole board of the evidence and reasons for revoking parole. 

In Gagnon v. Scarpelli (1973), the Court held that the requirements for a 
probation revocation hearing are identical to the requirements for a parole revoca¬ 
tion hearing. While the Court admitted that parole and probation are not identical, 
revocation of probation in cases in which sentence has been imposed previously 
is fundamentally indistinguishable from revocation of parole. 

Several years prior to the Morrissey and Gagnon decisions, the Court held 
in Mempa v. Rhay (1967) that the Sixth Amendment right to counsel applies to 
a combined revocation and sentencing hearing, on the grounds that since the right 
to counsel attaches at any stage in a criminal proceeding in which substantial 
rights of a criminal defendant are involved, that right should include sentenc¬ 
ing. 

Constitutional rights of parolees are often brought into question with re¬ 
spect to parole conditions. Courts and parole boards have broad authority to im¬ 
pose parole conditions. Common conditions of both probation and parole include 
not associating with known criminals, not using drugs or alcohol, limits on inter¬ 
state travel, maintaining gainful employment, and consenting to searches by law 
enforcement personnel or caseworkers (Hemmens and del Carmen, 1997). 

While many conditions impinge on fundamental constitutional rights, 
courts have upheld these conditions under the rationale that a probationer or pa¬ 
rolee loses some of the full complement of rights upon conviction, which is a 
variation on the concept of civil death. Generally, a probation or parole condition 
will be upheld so long as it is reasonably related to protection of the public, 
rehabilitation of the offender, or the offense committed (Cohen, 1995). 

One of the most common conditions of parole is a consent to search condi¬ 
tion. This condition generally covers searches conducted by parole officers and 
often allows searches by police officers as well. The scope of the search usually 
includes the offender’s person and property. 

Another current, widely used parole condition is the requirement that sex 
offenders register with local authorities upon their release. At least 34 states have 
enacted some form of sexual offender registration law (Cohen, 1995). These reg¬ 
istration laws vary but frequently include requirements that local law enforcement 
release information to the public when a sexual offender is placed in the jurisdic¬ 
tion. 



314 


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I. Immunity from Suit 

Under common law, the state could not be sued for civil damages as a result of 
its actions. Under the English doctrine of sovereign immunity, the King, as an 
agent of God, was incapable of doing wrong and hence there was no possibility 
of liability since there could be no wrongdoing (Black, 1983). This doctrine has 
continued in watered-down fashion to the present day under the theory that the 
government can be sued only if it consents to the suit, either expressly through 
statute or constitutional provision. 

Most states have some statutory provision waiving their sovereign immu¬ 
nity in certain circumstances. This allows lawsuits to be brought in state court 
relying on state tort law. A tort is a “private or civil wrong or injury other than 
breach of contract, for which the court will provide a remedy in the form of an 
action for damages” (Black, 1983). The importance of the doctrine of sovereign 
immunity is that it allows a plaintiff to sue not merely the individual employee 
for damages but to sue the government, as the employer of the individual, under 
the doctrine of respondeat superior (Hemmens, 1997). Under this doctrine, an 
employer may be held liable for the torts of an employee if these torts are commit¬ 
ted in the scope of employment. 

Generally speaking, for the liability to be recognized, there must be not 
only a waiver of sovereign immunity but also proof of inappropriate conduct by 
the employee. In tort law, there are several levels of conduct for which liability 
may be imposed: strict liability, negligence, and recklessness. In strict liability, 
liability is imposed regardless of the knowledge of the defendant. This rarely 
applies to criminal justice personnel. Usually negligence is not enough to incur 
liability either. Instead, there must be a showing of recklessness: conduct that 
displays both serious risktaking and an awareness of the likelihood of harm (Hem¬ 
mens, 1997). While recklessness may be proven by the civil standard of proof 
by a mere preponderance of the evidence, rather than the criminal standard of 
proof beyond a reasonable doubt, it is nonetheless a difficult burden for most 
plaintiffs to meet. 


J. Legal Remedies for Harm 

There are several bases for correctional personnel liability. The most common 
are state tort law, the Federal Tort Claims Act of 1946, and the Federal Civil 
Rights Act of 1871 (42 U.S.C. Section 1983). The Federal Tort Claims Act of 
1946 waives the sovereign immunity of the federal government in a number of 
areas, and 42 U.S.C. Section 1983 provides a federal law remedy for injury 
caused by state actors. 

To succeed under a Section 1983 claim, the defendant must be acting “un¬ 
der color of law,” meaning that the injury was a result of misconduct by a state 
agent acting in his or her role as a state agent. In addition, the injury must involve 



Prisoner Rights 


315 


a constitutional or federally protected right. While Section 1983 was passed by 
Congress in 1871, it was not until 1961, in the case of Monroe v. Pape, that the 
Supreme Court held that the law applies to the violation of civil rights of criminal 
suspects. Recent reports indicate that inmates most often file Section 1983 law¬ 
suits alleging use of excessive force by officers or due process violations, seeking 
protection from inmate attacks, or alleging inadequate medical treatment (Hanson 
and Daley, 1995, cited in Cornelius, 1997). 

State tort law varies a great deal from state to state. Generally, however, 
three conditions must exist for a tort, or civil wrong, to be proven. First, it must 
be shown that the defendant owed a duty to the plaintiff. Second, it must also 
be shown that the defendant not only owed a duty to the plaintiff but breached 
that duty. The third condition is a demonstration that the injury suffered by the 
plaintiff was in fact the proximate consequence of the defendant’s breach of duty. 
Proximate cause is a concept created by judges intended to limit liability for 
damages to consequences that are reasonably foreseeable and related to the defen¬ 
dant’s conduct. 

In legal parlance, there are three forms that breach of duty, the second 
condition necessary to prove a tort, may take in regard to state agents. One form 
is termed misfeasance and exists when an employee of the state takes an improper 
action. The other two forms are both termed malfeasance and occur when the 
employee takes no action or takes a required action but performs it inappropri¬ 
ately. 

K. Recent Limitations on Inmate Litigation 

In April, 1996, Congress enacted two pieces of landmark legislation aimed at 
limiting inmate litigation: the Prison Litigation Reform Act (Pub.L.No.104-134, 
110 Stat.1321) and the Antiterrorism and Effective Death Penalty Act 
(Pub.L.No. 104-132,110 Stat.1218. The PLRA focuses in part on curtailing mer¬ 
itless inmate litigation, and the AEDPA restricts habeas corpus writs. 

Both acts require state inmates to exhaust all administrative remedies avail¬ 
able before filing either a civil rights action or habeas corpus petition in a Federal 
court. The AEDPA provides generally only one Federal habeas corpus petition 
challenging convictions or sentences and imposes a statute of limitations. 

Additional restrictions of the PLRA include requiring a showing of physical 
injury before inmates filing civil actions in federal courts may seek recovery of 
damages for mental or emotional injuries incurred while incarcerated (Scalia, 
1997; see also Bennett and del Carmen, 1997). The PLRA prohibits inmates from 
filing civil actions in forma pauperis (as an indigent) if such inmates have had 
three or more previous actions dismissed on grounds of frivolousness, malicious¬ 
ness, or for filing to state a claim upon which relief may be granted unless the 
inmate is in imminent physical danger. Further, inmates who do file actions in 
forma pauperis are responsible for paying court filing fees when they do have 



316 


Bennett and Hemmens 


funds available. Under the PLRA, federal courts may also order the revocation 
of earned release credits (credit toward release typically based on work assign¬ 
ments) or good-time credits (credit toward release time based on good behavior) 
and of federal inmates who file malicious or false civil action claims. 

Both acts have been credited with reducing federal court caseloads (Limits 
on Inmate Litigation, 1997). In 1997, the first full year that the PLRA was in 
effect, the number of federal and state inmate petitions filed in U.S. District 
Courts dropped 33% from the number filed the year before (PLRA Facts, 1999). 
However, the constitutionality of at least the PLRA remains in question (Bennett 
and del Carmen, 1997). 


IV. CONCLUSION 

Criminal offenders under correctional supervision do not enjoy the same rights 
as ordinary citizens. Prisoner rights that conflict with institutional goals of safety, 
security, order, and rehabilitation are necessarily withheld or restricted. Even 
where an inmate’s rights have been limited, however, correctional administrators 
must still follow certain procedures before taking away these rights. This is the 
essence of the phrase “due process of law.” 

It is imperative for correctional administrators to know the rights of inmates 
and to keep abreast of judicial decisions. The dramatic increase in imprisonment 
has contributed to an equally dramatic increase in inmate litigation. As our soci¬ 
ety’s principles of decency evolve and mature, transformation of inmate rights 
will obviously occur. On the other hand, the current curtailment of inmate rights 
is predicted by some only to increase, with some authors suggesting that “the 
tide of recognizing and enforcing prisoners' rights has retreated to the murky sea 
of retribution and punishment” (Palmer, 1997:v). 

This chapter has presented an overview of prisoner rights in the areas of 
medical treatment, access to legal services and rights under the First, Fourth, 
Fifth, Sixth, and Eighth Amendments. Due process rights have been briefly dis¬ 
cussed as well as issues of correctional personnel immunity and liability. 


REFERENCES 

Bennett, K. J., and del Carmen, R. V. (1997). A review and analysis of Prison Litigation 
Reform Act court decisions: Solution or aggravation? Prison J. 77(4): 405-455. 
Bennett, K. J. (1995). Constitutional issues in cross-gender searches and visual observation 
of nude inmates by opposite-sex officers: A battle between and within the sexes. 
Prison J. 75(1): 90-112. 

Black, H. C. (1983). Black’s Law Dictionary , 5th ed., West Publishing, Minneapolis, MN. 
Cohen, F. (1995). Liability and negligent release, in The Sex Offender: Corrections, Treat- 



Prisoner Rights 


317 


merit, and Legal Practices, B. Schwartz and H. Celliniri, eds., Civic Research Insti¬ 
tute, Kingston, NJ. 

Cornelius, G. F. (1997). Inmate rights: Sparks for staff training. Corrections Today, Febru¬ 
ary: 80,82. 

Corrections Alert (1998). President calls for zero tolerance on drugs in prison, 4(20): 1. 

Cripe, C. A. (1997). Legal Aspects of Corrections Management, Aspen Publishers, 
Gaithersburg, MD. 

deGroot, G. (1997). Supreme Court invalidation of RFRA could reduce frivolous litigation 
by inmates, On the Line 20(4): 1-2. 

del Carmen, R. V., Bennett, K. J., and Dailey, J. D. (1996). State-created liberty interest in 
prisons: What the court giveth, the court also taketh away, Prison J. 76(3): 348-372. 

del Carmen, R. V., Ritter, S. E., and B. A. Witt. (1998). Briefs of Leading Cases in Correc¬ 
tions, Anderson Publishing Co., Cincinnati, OH. 

Domino, J. C. (1994). Civil Rights and Liberties: Toward the 21st Century, Harper Collins, 
New York, NY. 

General Accounting Office. (1991). Drug Treatment: State Prisons Face Challenges in 
Providing Services. United States General Accounting Office, Washington, D.C. 

Haas, K. C. (1993). Constitutional challenges to the compulsory HIV testing of prisoners 
in mandatory segregation of HIV-positive prisoners. Prison J. 73(3 & 4): 391-422. 

Hanson, R., and Daley, H. W. K. (1995). Challenging the Conditions of Prisons and Jails: 
A Report on Section 1983 Litigation, Bureau of Justice Statistics, Washington, D.C. 

Hemmens, C. (1997). Legal and ethical issues in casework and counseling, in Correctional 
Assessment, Casework and Counseling, A. Walsh, ed., American Correctional As¬ 
sociation, Lanham, MD. 

Hemmens, C. and del Carmen, R. V. (1997). The exclusionary rule in probation and parole 
revocation proceedings: Does it apply? Fed. Probation 61(3): 32. 

In the courts (1998). Corrections Alert 4(20): 5. 

Jaroslawicz, I. M. (1996). Taking the fear out of RFRA: Why correctional staff of good 
faith have no reason to worry. www.aleph-institute.org/html/Fear.html 

LaFave, W. R. (1996). Search and Seizure: A Treatise on the Fourth Amendment, 3rd 
ed., West Publishing, Minneapolis, MN. 

Limits on inmate litigation taking effect, Rehnquist says (1997). Criminal Justice News¬ 
letter 28(24): 3. 

Palmer, J. W. (1997). Constitutional Rights of Prisoners. Anderson Publishing, Cincinnati, 
OH. 

PLRA Facts, (1999). Corrections Professional 4(10). 

Religious Freedom Restoration Act, 42 U.S.C. Section 2000bb, et seq. 

Scalia, J. (1997). Prisoner Petitions in the Federal Courts, 1980-96, Bureau of Justice 
Statistics, Washington, D.C. 

Welch, M. (1996). Corrections: A Critical Approach, McGraw-Hill Publishing, New 
York, N.Y. 

SIGNIFICANT SUPREME COURT DECISIONS 

Barron v. Baltimore, 7 Peters 243 (1833). 

Block v. Rutherford, 468 U.S. 576 (1984). 



318 


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Bounds v. Smith, 430 U.S. 817 (1977), 

Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997). 

City of Boerne v. Flores .—U.S.—, 117 S.Ct. 2157 (1997). 

Coffin v. Reichard. 143 F.2d 443 (6th Cir. 1944). 

Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981). 

Cruz v. Beto, 405 U.S. 319 (1972). 

Estelle v. Gamble, 429 U.S. 97 (1976). 

Ex pane Hull, 312 U.S. 546 (1941). 

Farmer v. Brennan, 114 S. Ct. 1970 (1994). 

Gagnon v. Scarpelli, 411 U.S. 778 (1973). 

Goodwin v. Oswald, 462 F.2d 1237 (2d Cir. 1972). 

Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979). 
Holt v. Saner, 309 F. Supp. 362 (E.D. Ark. 1970). 

Johnson v. Avery, 393 U.S. 483 (1969). 

Johnson v. Pennsylvania Bureau of Corrections, 661 F.Supp. 425 (W.D.Pa. 1987). 
Jones v. North Carolina Prisoner Union 433 U.S. 119 (1977). 

Lewal v. Tippy , #97-2367 (2d Cir. 1998). 

Lewis v. Casey, 64 L. W. 4587 (1996). 

Madyun v. Franzen 704 f.2d 954 (7th Cir. 1983). 

Mempa v. 389 U.S. 128 (1967). 

Miranda v. Arizona, 384 U.S. 436 (1966). 

Monroe v. Pape, 365 U.S. 167 (1961). 

Morrissey v. Brewer, 408 U.S. 471 (1972). 

Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997). 

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). 

Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790 (1871). 

Sandin v. Conner. 115 S. Ct. 2293 (1995). 

Thornburgh v. Abbott, 490 U.S. 401 (1989). 

Turner v. Safley, 482 U.S. 78 (1987). 

Washington v. Harper, 494 U.S. 210 (1990). 

Wilson v. Setter, 501 U.S. 294 (1991). 

Wolff v. McDonnell. 418 U.S. 539 (1974). 

Wright v. Coughlin, 132 F.3d 133 (2d Cir. 1998). 



18 

Correctional Administration and 
Section 1983 Liability Issues 

Darrell L. Ross 

East Carolina University, Greenville, North Carolina 


I. INTRODUCTION 
A. Court Intervention 

During the last 30 years, correctional administration in the United States has been 
shaped by major social, economic, legal, and political factors external to the 
criminal justice system (Flanagan et al., 1996). Judicial intervention has been the 
principal agent in forcing change in the nation’s prison and jails. 

Prior to court intervention, prison administrators were generally free to 
operate the prison without much external review. With several sweeping rulings 
in the early 1970s, the United States Supreme Court abandoned a philosophy 
that prisoners were ostensibly “slaves of the state.” While the federal courts have 
a long history of involvement in controversies over rights and responsibilities, the 
courts have become increasingly willing to intervene in cases alleging that state or 
local government agencies have violated individual rights or rules or regulations 
(Chilton and Nice, 1993). 

The extent of this involvement by the federal judiciary in overseeing major 
changes in the nation’s prisons is perhaps second in breadth and detail only to 
the court’s earlier role in dismantling segregation in the nation’s public schools 
(Freely and Hanson, 1991). Judicial activism is the norm in the contemporary 
prison, and many correctional systems are under judicial scrutiny to change and 
improve conditions. Prison litigation has developed a broad scope of litigation 
involving numerous state and local programs, from education and environmental 
protection to personnel issues. 

The United States Supreme Court in Cooper v. Pate, 378 U.S. Ct. 546 

319 



320 


Ross 


(1964) held that state prisoners could bring lawsuits against correctional officials 
under Title 42 U.S.C. Section 1983, the Civil Rights Act. This decision has trig¬ 
gered an avalanche of prisoner litigation, flooding the federal court system, and 
has had a profound effect on the correction system. Prisoner litigation and court 
intervention have directly affected a wide range of prison issues, including health 
care services, sanitation standards, access to courts, food services, religious prac¬ 
tices, disciplinary procedures, staff training, and the constitutionality of prison 
conditions “in their totality” (DiLulio, 1990). The Administrative Office of the 
U.S. Courts reported in 1966 that 218 prisoner Section 1983 petitions were filed. 
By 1970, state prisoners had filed 2,030 Section 1983 lawsuits, in 1994 the num¬ 
ber had climbed to 36, 318. In 1996, the number of prisoner lawsuits filed rose 
to 68,235 (Scalia, 1997; AOC, 1996). 

B. Previous Prisoner Litigation Research 

Limited research has been conducted to analyze the trends and patterns of pris¬ 
oner litigation. Ross (1997) conducted a 25 year (1970-1994) content analysis 
of 3,205 published prisoner Section 1983 suits. He reported 16 major areas in 
which prisoners commonly file a federal lawsuit. The top five most common 
areas of litigation involved issues of medical care, access to courts, discipline, 
administrative liability, and conditions of confinement. During the period of 
study, prisoners prevailed in approximately 48% of the administrative liability 
lawsuits filed, and this category represented the third highest category in which 
monetary awards were granted to prevailing prisoners. 

Hanson and Daley (1995) researched 2,700 Section 1983 lawsuits in 1992 
in nine states. They found that prisoners rarely prevailed in a lawsuit. They re¬ 
ported that the second largest group of named individuals is the head of the 
institution, such as wardens, deputy wardens, supervisors, building directors, or 
jail administrators (22%). Correction officers were named as defendants slightly 
more frequently (26%). 

The proliferation of prisoner litigation has generated limited scholarly 
study. Prisoner litigation research has generally addressed issues of prisoners 
rights and the impact of court intervention (Call, 1995; Chilton and Nice, 1993; 
Wallace, 1992; Alexander, 1993; Vaughn and del Carmen, 1993; Freely and Han¬ 
son, 1991; Bronstein, 1987; Champion, 1988; McCoy, 1981; Turner, 1979; Man¬ 
ning, 1977; Singer, 1980; Turner, 1979). Classification of prisoners and failure 
to protect liability have also sparked legal research (Belbot and Marquart, 1998; 
Benett and del Carmen, 1997; Vaughn, 1996; Vaughn and del Carmen, 1995). 
Other areas of scholarly liability research have focused on defining a frivolous 
Section 1983 prisoner lawsuit (Maahs and del Carmen, 1995), and liability associ¬ 
ated with creating liberty interests in prisons (del Carmen et al„ 1996). 

While these studies highlight liability issues filed by prisoners, they do not 



Section 1983 Liability 


321 


address administrative liability issues when prisoners allege managerial defi¬ 
ciencies when they perform supervising responsibilities with employees. Federal 
court decisions have affected virtually every aspect of prisoner operations, includ¬ 
ing the day-to-day activities of prison administrators. Prisoners may not only file 
lawsuits against managers for operational issues, but administrators are also tar¬ 
gets of litigation for actions or omissions of their employees and targets from 
their own employees for issues of discrimination and sexual harassment. 

Never before have correctional executives received such intense scrutiny 
from the judicial system (Flanagan et al., 1996). As prisons have become over¬ 
crowded, violent, racially polarized, and financially strapped, administrators have 
seen not an expansion of their powers but, rather, their role reduced from a 
“prison czar to a well constrained manager” (Hawkins and Alpert, 1989). Still 
required to maintain order and security within the prison, correctional administra¬ 
tors must do so with limited budgets, less authority, and within legal mandates 
and potential liabilities. While most correctional activities occur behind the for¬ 
tress walls of the prison, the media, public, interest groups, and the judiciary are 
keenly interested in the incarceration, treatment, and punishment of prisoners. 

The contemporary prison administrator has unique liability concerns that 
previous counterparts did not confront 30 years ago. Prison administrators have 
previously reported their concern over judicial regulations that have an impact 
on their job effectiveness, satisfaction in the job, officer morale, weakened officer 
and administrative authority with prisoners, and violence in prisons (Freely and 
Hanson, 1990; Cullen et al., 1993; Flanagan et al., 1996). However, current re¬ 
search on prison liability reveals that administrative liability ranks among the 
top five most frequent areas for prisoner lawsuits. Hence, administrators need to 
be aware of their potential management liability. 

This chapter examines the potential liability issues for the correctional ad¬ 
ministrator in directing employees. It focuses specifically on federal Section 1983 
civil litigation that names the correctional administrator as defendant for failing 
to fulfill properly administrative functions in directing, controlling, hiring, as¬ 
signing, promoting, training, and disciplining employees. Prisoner rights cases 
are excluded. Case examples and strategies for reducing liability exposures will 
be discussed. 


II. CORRECTIONAL ADMINISTRATIVE COMPETENCIES 

A. Correctional Administrators’ Responsibilities 

Correction administrators, like other executives of an organization, are responsi¬ 
ble for planning, controlling, organizing, budgeting, staffing, directing, reporting, 
and supervising employees (Phillips and McConnell, 1997). Additional func¬ 
tional competencies endemic to prison administrators include, among others, the 



322 


Ross 


management of emergencies, decisionmaking, establishing priorities, knowledge 
of prison security, management of prisoners, knowledge of technology, knowl¬ 
edge of the political process, and management of people (NIC, 1988; Wright, 
1994). Of major concern regarding prison administrative competencies is the dy¬ 
namic area of maintaining knowledge in law and supervisory liability issues. 
The developing case law in this field strongly suggests that there is a need for 
administrators and supervisors to know the limits of their jobs and to be more 
aware of their subordinates’ competence and performance. 

Correctional managers are charged with the responsibility of operating a 
complex, multifaceted hybrid organization. Administrators use two subsystems 
to accomplish their goals: one system is concerned with delivering treatment 
programs and services to the prisoner population; the other is concerned with 
managing employees. 

Both of these subsystems are unique to correctional management because 
prison administrators must ensure safety of the community by supervising violent 
and dangerous criminals within a hostile and overcrowded environment, routinely 
under immense budgetary constraints. They must balance the need to deliver 
myriad services to an unmotivated and undereducated prison population against 
society’s belief that prison systems are too lenient with criminals who have for¬ 
feited their rights by committing a crime. Moreover, prison administrators are 
faced with both short- and long-term planning for facility expansion, budgetary 
needs, technology needs, and human resources. Effective planning is intensely 
difficult due to the nature of the political arena influencing state correction needs. 
Administrators must also monitor and control employee workflow and keep 
abreast of employee performance. 

Managing people is central to the effective operation of the prison system. 
Correction officers exercise legal authority over prisoners. Therefore, correction 
personnel must exercise a high degree of skill in using their authority and discre¬ 
tion when executing departmental policy and enforcing various aspects of the law. 
Legal actions against correctional employees frequently emerge from decisions in 
which correctional personnel have implemented a specific policy change that has 
prohibited and/or curtailed certain behaviors of the prisoner population. Other 
prisoner litigation may result from allegations of correctional personnel failing to 
perform their legally assigned duties, performing the duty in a negligent manner, 
misusing their authority, using excessive force, or depriving the prisoner of cer¬ 
tain constitutional rights. 

B. Prison Administrators’ Potential Liability 

Prison administrators and correctional supervisors face even greater potential lia¬ 
bility. This liability emerges out of the managerial function of supervising the 
actions of employees under their responsibility. As mentioned previously, admin- 



Section 1983 Liability 


323 


istrators are responsible for numerous managerial functions and these duties fre¬ 
quently expose the risk of liability for administrators. Any employee action that 
has been alleged to deprive the prisoner of a protected right may in turn expose 
the administrator to potential liability. This often places administrators in a posi¬ 
tion to explain why they should not be held responsible for the employee’s con¬ 
duct. Such situations are frequently difficult to defend and make the administra¬ 
tive chain of command more vulnerable to liability, as well as heightening the 
potential for organizational liability. 

Almost every action taken by an administrator in dealing with prisoners 
and employees entails potential liability and legal consequences. It becomes es¬ 
sential that prison administrators execute their managerial competencies and 
functions within the context of legal supervisory responsibilities. 

This does not suggest that managerial decisionmaking be impeded by legal 
paranoia. Rather, it implies that the efficient operation of the contemporary prison 
system be maintained within working guidelines of potential supervisory liability 
issues. The duty of prison administrators is to know their own potential for liabil¬ 
ity when they perform their basic managerial functions. Executing the responsi¬ 
bilities of a prison executive requires that administrators not only develop mana¬ 
gerial competencies to lead the correctional organization but also concomitantly 
continue to develop legal competencies to reduce their own legal risk and the risk 
of the organization from litigation. A thorough understanding of the fundamental 
liability issues will equip the administrator in accomplishing this objective. 


III. LIABILITY UNDER TITLE 42 U.S.C. SECTION 1983 
A. Section 1983 

Every correctional administrator should be aware of Title 42 United States Code, 
Section 1983. Since 1978, this has become the primary vehicle by which adminis¬ 
trators have been sued for allegations resulting from their management function. 
It is the statute used to apply the rights guaranteed by the United States Constitu¬ 
tion to the everyday decisions and policies of state and local government agencies. 
The correctional administrator must be familiar with the law and agency policies 
in order to avoid liability for violation of constitutional rights. 

Originally known as Section 1 of the “Ku Klux Klan Act” of 1871, this 
law was a means of enforcing the Fourth Amendment guarantee of rights to newly 
freed slaves (del Carmen, 1991). The law was designed to provide redress for 
violations of federally protected rights committed by persons acting under “color 
of state law.” Codified by Congress, this law is now known as Section 1983, and 
it provides in part: ‘ ‘Every person under color of law of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, subjects or causes to be 
subjected, any citizen of the United States or other persons within the jurisdiction 



324 


Ross 


thereof to the deprivations of any rights, privileges, or immunities secured by 
the Constitution and laws, shall be liable to the party injured in an action at law, 
suit in equity, or other proper proceeding for redress.” 

The law itself does not create any substantive rights; instead, it provides 
a vehicle for bringing claims of constitutional rights violations. To succeed, a 
plaintiff must prove that the defendant was acting under “color of law,” as well 
as depriving the plaintiff of a clearly established guaranteed right, under the 
United States Constitution (Vaughn and Coomes, 1995). Claiming the defendant 
acted under “color of law” in a Section 1983 lawsuit, the plaintiff is asserting 
a misuse of power or authority by the actor. The courts have broadly interpreted 
this phrase to include state law, local law, ordinances, and agency regulations. 
It excludes, however, actions taken under federal law, and therefore Section 1983 
does not apply to federal officers or agencies. Federal agencies, however, may 
be sued under provisions of the Federal Tort Claims Act. 

B. Provision for Damages 

Section 1983 provisions provide for lawsuits to be filed by “any citizen of the 
United States or other persons within the jurisdiction hereof” whose rights have 
been violated. It excludes corporations and business entities because they are 
persons only by creation of law. Interpretation of this clause includes prisoners, 
and some courts have held that aliens in the United States may also file a civil 
rights lawsuit if any of the constitutional rights given to illegal aliens (such as 
the right to due process and equal protection under the Fourteenth Amendment) 
are violated. If successful, the plaintiff may be compensated monetarily for actual 
damages for out-of-pocket expenses, injuries incurred, and mental anguish suf¬ 
fered, Carey v. Phiphus, 435 U.S. 247 (1978). In Sostre v. McGinnis , 405 U.S. 
978 (1972), the prisoner was awarded $9,300 in compensatory damages and the 
warden and commissioner of corrections were liable for deplorable conditions 
in segregation. 

Punitive damages may also be recovered for reckless or callously indiffer¬ 
ent deprivations of constitutional rights, as well as deprivations motivated by 
actual malicious intent by the defendant. In Smith v. Wade, 103 S.Ct. 1625 (1983), 
the Court awarded $25,000 compensatory damages and $5,000 in punitive dam¬ 
ages against the classification officer for failing to protect and properly classify 
a prisoner when a prisoner was sexually assaulted by a known enemy within the 
prison system. Correctional officials knew of the enemy but ignored the informa¬ 
tion. 

The Supreme Court has held that Section 1983 actions may be brought in 
state as well as federal courts ( Maine v. Thiboutot, 448 U.S. 1, 1980). There is 
no requirement that a person exhaust or use state-provided remedies prior to filing 
a Section 1983 lawsuit, Patsy v. Board of Regents of Florida, 457 U.S. 496 



Section 1983 Liability 


325 


(1982). A Section 1983 claim cannot be used to challenge the fact or duration 
of confinement in a prison, Preiser v. Rodriquez, 411 U.S. 475 (1974). Section 
1983 lawsuits are normally filed in federal court, where the procedures for ob¬ 
taining documents from the defendant, known as discovery, are frequently more 
liberal than in state courts. Civil rights cases can be filed in addition to a criminal 
case and vice versa. 

A state government employee may be sued for monetary damages in an 
individual or personal capacity for acts performed while discharging duties as a 
state government employee. However, a suit against a state employee in the “of¬ 
ficial’ ’ capacity imposes liability against the entity that the employee represents 
and cannot be brought because the Eleventh Amendment prohibits lawsuits 
against states, Brandon v. Holt , 469 U.S. 464 (1985). 

Under Section 1983, neither states nor their agencies may be sued for 
money since Congress did not intend to include states or state agencies within 
the meaning of “persons” for purposes of money damages. Will v. Michigan 
Department of State Police , 491 U.S. 58 (1989). A state and its agencies, how¬ 
ever, may be sued for potential injunctive relief to prevent actions, continuous 
or future constitutional violations, against prisoners, Kentucky v. Graham , 473 
U.S. 159 (1985). If the plaintiff prevails in an injunctive relief action, the state 
may be required to pay attorney fees under 42 U.S.C. Section 1988, Hutto v. 
Finney , 437 U.S. 678 (1978). 


IV. SUPERVISORY LIABILITY ISSUES 

A. Basis for Liability 

Section 1983 lawsuits frequently include naming the supervisor along with the 
correction officer. This practice is based on the theory that the officer acts for 
the agency and, therefore, what is done reflects agency policy and practice. As 
a legal strategy the plaintiff includes the agency arid supervisors because the 
higher position the employee holds, the closer the plaintiff gets to the deep pocket 
of the county or state agency. Chances of monetary recovery are increased if 
supervisory personnel, by virtue of their position, are included in the lawsuit. 
Moreover, inclusion of administrative and supervisory personnel may also create 
a conflict of interest in the legal strategy for the defense, hence strengthening 
the plaintiff’s claim for one or more defendants. 

B. Policymaker 

The United States Supreme Court has held that supervisors can be held responsi¬ 
ble for acts of their employees, Monnell v. Department of Social Services of New 
York, 436 U.S. 658 (1978). This decision expanded the meaning of the clause 



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in Section 1983, “every person,” to include governmental entities. The supervi¬ 
sor is not liable because an employee violated the prisoner’s constitutional right 
but may be liable for abdicating supervisory responsibilities when the failure 
results in a violation of constitutional rights. Under Section 1983, the doctrine 
of respondeat superior (“let the master answer”) does not form the basis of 
liability, Polk County v. Dodson, 454 U.S. 312 (1981). Under the doctrine of 
respondeat superior the master is responsible for the actions of the servant. It 
does not, however, apply to public employment because public officials are not 
the “masters” of their employees; they serve the governmental agency. 

The Monnell decision established governmental liability for behavior of 
correction personnel when they implement or execute agency, promulgated or 
adopted policies, or regulations, or conduct that results from a “custom,” even 
though such custom has not received approval through formal channels (p. 690). 

To establish governmental liability, the plaintiff must establish that there 
existed a policy or custom, and that it was the “moving” force behind the offi¬ 
cer’s violation of the prisoner’s constitutional deprivation. The courts have enu¬ 
merated several potential ways in which liability may be incurred under Section 
1983 against a supervisor: if they directly participated in the action; if the supervi¬ 
sor, after learning of the violation through a report or appeal, failed to remedy 
a wrong; the supervisor created a policy or custom under which unconstitutional 
practices occurred or allowed such a policy or custom to continue; or if the super¬ 
visor was grossly negligent in managing the subordinates who caused the unlaw¬ 
ful condition or event (del Carmen, 1991; Kappeler, 1997). 

The question frequently emerges of who is considered an “official” poli¬ 
cymaker. Certainly not all supervisors fall into this category. On two occasions 
the United States Supreme Court has ruled on the issue of who is a policymaker 
for purposes of liability. In Pembaur v. City of Cincinnati , 475 U.S. 469 (1986), 
the Court held that those public officials who have final policy making authority 
can render an agency liable under Section 1983 provisions. In City’ of St. Louis 
v. Praprotnik, 108 S. Ct. 915 (1988), the Court held that a governmental entity 
may be held liable in cases where authorized policymakers “approve a subordi¬ 
nate’s decision and the basis for it” (p. 127). The Court further added that the 
decision for determining who is the official policymaker for purposes of liability 
is to be made by examining state law. Prison administrators would generally fall 
within this category. In Marcheese v. Lucas 758, F. 2d 181 (1985), the court 
found the sheriff to be the official agency policymaker and assessed $125,000 
against him for failing to train and discipline correction officers when they beat 
a prisoner. 

Liability can be imposed against supervisors if they establish or enforce 
a policy or custom that causes a constitutional deprivation. Liability generally, 
however, cannot be based solely on a single incident of misconduct. In City of 
Oklahoma City v. Tuttle, 471 U.S. 808 (1985), the United States Supreme Court 



Section 1983 Liability 


327 


determined “that proof of a single incident of unconstitutional activity is not 
sufficient to impose liability.... unless it was caused by existing unconstitutional 
municipal policy, which can be attributed to a municipal policy maker" (p. 814). 
The plaintiff must establish that the deprivation resulted as a matter of continuing 
agency policy, and that the policy was the moving force behind the deprivation. 

Factors that may strengthen a theory of a plaintiff’s claim of agency prac¬ 
tices of constitutional abuses may include (del Carmen and Kappeler, 1991): 

1. Frequency of the violation 

2. The extent to which the practice was routinized by employees 

3. The extent to which the practice was accepted by supervisors 

4. The extent to which the action represented shared beliefs of employees 

5. Retention of, failure to discipline, or failure to investigate the violating 
employee 

6. Failure to prevent future violation 

V. THEORIES OF SUPERVISORY LIABILITY 
A. Deliberate Indifference 

Some ambiguity exists among federal courts as to the level of culpability required 
for finding liability with supervisors under Section 1983. The courts have used the 
standard of gross negligence on occasion, but more commonly use the standard of 
deliberate indifference for determining supervisory liability under Section 1983. 

This standard was first established in Estelle v. Gamble, 429 U.S. 97 
(1976), when a prisoner sued correction officials over claims of denial and im¬ 
proper medical treatment of a back injury he sustained while working on the 
prison farm. The Court stated in Estelle that deliberate indifference involves a 
conscious intentional decision or choice to inflict unnecessary and wanton pain 
toward a prisoner. In Stokes v. Delcambre, 710 F. 2d 1120 (5th Cir. 1983), the 
court awarded $250,000 against a sheriff, $105,000 in punitive damages against 
a correction officer, and $70,000 in compensatory damages against both defen¬ 
dants for ignoring repeated screams from a prisoner who was being sexually 
assaulted by other prisoners. The court determined that there was sufficient evi¬ 
dence to support indifference to the safety of the prisoner and that the officers 
were wanton and oppressive in their actions toward the prisoner. 

Deliberate indifference has been defined, redefined, and expanded over the 
years by the United States Supreme Court in several correctional cases (Wilson 
v. Seiter, 11 S. Ct. 2321, 1991; Farmer v. Brennan, 114 S. Ct. 1970, 1994). The 
standard has not been specifically defined and applied on a case-by-case basis, 
but generally means that the actor disregarded a known or obvious consequence 
of his or her actions; consciously chose a course of action with disregard to the 



328 


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harmful outcome; or disregarded a risk of harm of which he or she was aware. 
The Court in Farmer stated that officials must possess knowledge that a substan¬ 
tial risk of harm existed by their actions or inactions. 

Deliberate indifference may be demonstrated by either actual intent or reck¬ 
less disregard. An administrator acts recklessly by ‘ ‘disregarding’ ’ a substantial 
risk of danger that is either known to the administrator or that would be apparent 
to a reasonable person in an administrator’s position. Mere negligence is insuffi¬ 
cient to support a Section 1983 claim. Prison administrators are not liable if they 
can show that they responded reasonably to known risks. 

Many forms of potential administrative actions may create in their totality 
evidence of deliberate indifference to constitutional protected rights. Case law 
reveals seven general theories from which potential administrative liability 
emerges: negligent hiring, negligent assignment, failure to direct, failure to super¬ 
vise, failure to discipline, and failure to train. These theories are not mutually 
exclusive; the plaintiff will usually allege several areas with which to frame the 
lawsuit against the administrator. For example, it is not uncommon for the plain¬ 
tiff to assert a failure by the administrator in directing, supervising, and properly 
training an officer in an excessive force allegation. 

B. Negligent Hiring 

Liability stems from claims alleging that the administrator failed to conduct a 
complete background investigation of the employee prior to employment. Liabil¬ 
ity emerges when an employee is unfit for appointment, such unfitness was known 
to the employer or should have been known through a background check, and 
the employee’s act was foreseeable. 

Hiring deficiencies led to liability in Jones v. Wittenburg, 440 F. Supp. 
60 (N.D. Oh. 1977). The sheriff was ordered by the court to provide training 
and psychological testing of staff. In Brown v. Benton, 425 F. Supp 28 (W.D. 
Okl. 1978) the court found that termination of an officer was reasonable based 
on results of background checks. In Benavides v. County of Wilson, 955 F. 2d 
968 (5th Cir. 1992) the court concluded that the sheriff had complied with 
state requirements when hiring candidates for the position of correction officer. 
Allegations of deliberate indifference for improper screening of employees was 
not supported, even though the prisoner sustained an injury during his con¬ 
finement. Liability attached in Parker v. Williams, 855 F.2d 763 (11th Cir. 
1988) when evidence supported the plaintiff’s claim against a sheriff for pro¬ 
moting a policy or custom of not conducting reasonable background checks on 
prospective employees. A former prisoner was kidnapped and raped by the 
chief jailer. 

For the first time the United States Supreme Court decided a case involving 
hiring practices in law enforcement when it reviewed Bryan County Oklahoma 



Section 1983 Liability 


329 


v. Brown, S. Ct. 117, 1382 (1997). This case involved an excessive force claim 
against a deputy after he engaged in a pursuit. Plaintiff’s theory was that the 
sheriff was deliberately indifferent to the constitutional rights of citizens as he 
ignored an alleged past violent history of the deputy and, therefore, the hiring 
practices were unconstitutional. The Court ruled in favor of the sheriff, stating 
that the hiring policy was not the moving force behind the incident nor the plain¬ 
tiff’s injury. The Court further stated: 

a finding of culpability simply cannot depend on the mere probability that any 
officer inadequately screened will inflict any constitutional injury. Rather, it 
must depend on a finding that this officer was highly likely to inflict the 
particular injury suffered by the plaintiff. The connection between the back¬ 
ground of the particular applicant and the particular constitutional injury must 
be strong (p. 14). 

Implications for administrators are the adequacy in conducting background 
investigations and the use of psychological examinations prior to hiring employ¬ 
ees. There is no magical legal formula for hiring prospective employees. How¬ 
ever, failing to institute adequate measures and taking reasonable steps in em¬ 
ployee selection, or ignoring information regarding the unfitness of a candidate 
increases the risk of liability. Hiring procedures must be instituted and state stan¬ 
dards and the law must be adhered to. 


C. Negligent Assignment 

Negligent assignment is the assigning of an employee to a job without ascertain¬ 
ing the employee’s competence or retaining an employee on a job known to be 
incapable of performing job duties. Examples may include assigning a reckless 
driver to transport prisoners or assigning an officer who has demonstrated insta¬ 
bilities in the past to a gun post. The administrator has an affirmative duty not 
to assign a subordinate to, or leave in a position, an employee who is unfit. In 
Moon v. Winfield 383 F. Supp. 31 (N.D. IL 1974) liability attached for failure 
to place a police officer who was unfit for his assignment into a nonsensitive 
position. The court held the supervisor liable since he had authority to assign or 
suspend the officer but failed to do so. The supervisor had received five separate 
misconduct reports within a 2 week period as well as a warning that the officer 
had been involved in a series of acts that indicated mental instability. 

In L. W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992) an appellate court found 
supervisors liable when a prison nurse filed a claim for improperly assigning her 
to work with young violent prisoners when her supervisors knew of the prisoners' 
previous violent histories. The court found that the supervisors created a danger¬ 
ous situation when they assigned the nurse to work by herself with these prison¬ 
ers, and, when left alone, she was raped by one prisoner. 



330 


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Administrators must pay careful attention to complaints and adverse reports 
against subordinates. These must be investigated and properly documented. Ad¬ 
ministrators must also generally be aware of the competence and weaknesses of 
subordinates and not assign them to perform tasks for which they lack skill or 
competency. 

D. Failure to Train 

Lawsuits alleging a constitutional injury, resulting from the department’s policy 
of failing to provide training to employees, are highly common. Many cases have 
categorically mandated that jail and prison administrators train their personnel 
or improve their training programs, Jones v. Wittenburg, 300 F. Supp. 707 (N.D. 
Oh. 1971); Miller v. Carson, 401 F. Supp. 835 (M.D. Fla. 1975; Owens v. Haas, 
601 F. 2d 1242 (2d Cir 1979). In Owens, the Second Circuit Court of Appeals 
held that while a county may not be liable for mere failure to train employees, 
it could be liable if its failure was so severe as to reach the level of gross negli¬ 
gence or deliberate indifference. In Hays v. Jefferson, 668 F.2d (6th Cir. 1982) 
the United States Court of Appeals ruled that a supervisor may be held liable 
“only where there is essentially a complete failure to train. ... or training was 
so reckless or grossly negligent that future misconduct is almost inevitable, or 
would be characterized as substantially certain to result.” 

The United States Supreme Court in City of Canton, Ohio v. Harris, 57 
U.S.L.W. 4263 (1989) held that inadequate training may serve as the basis for 
liability only when the failure to train amounts to deliberate indifference by poli¬ 
cymakers of the agency. The Court noted that inadequate training rises to deliber¬ 
ate indifference only when the need for more or different training is obvious and 
the failure to implement such training is likely to result in a constitutional viola¬ 
tion. Furthermore, the Court added that officers must receive continuing training 
to “usual and recurrent” situations. 

Since the Canton decision, several correctional administrators have been 
found liable in lawsuits claiming a failure to train. Using the deliberate indiffer¬ 
ence standard, a federal district court in Coleman v. Wilson, 912 F. Supp. 1282 
(E.D. Cal 1995) determined that custodial staff were inadequately trained in signs 
and symptoms of mental illness, which supported allegations that disciplinary 
and behavior control measures were inappropriately used against mentally ill 
prisoners. The 3 hour training course attended by all new officers, and additional 
inservice training at the institutional level, was not sufficient to prevent some 
officers from using punitive measures to control prisoner’s behavior without re¬ 
gard to the cause of the behavior. 

A Ninth Circuit federal court ruled in favor of prisoners in Madrid v. Go¬ 
mez, 889 F. Supp. 1146 (N.D. Cal. 1995) on several issues, including failure to 
train, excessive force, constitutionally inadequate mental services, and deficient 



Section 1983 Liability 


331 


medical care. The court held that staffing levels were insufficient, training and 
supervision of medical staff almost nonexistent, and screening for communicable 
diseases poorly implemented. Prisoners frequently experienced significant delays 
in receiving treatment, there were no protocols or training programs dealing with 
emergencies or trauma, and there were no procedures for managing chronic ill¬ 
ness. Prisoners established prison administrators’ deliberate indifference, show¬ 
ing that they knew that unnecessary and grossly excessive force was being used 
against prisoners routinely by officers, and that these practices posed a substantial 
risk of harm to prisoners. The court also held that prison officials had actual 
subjective knowledge that conditions of isolation presented a substantial exces¬ 
sive risk of harm for mentally ill and other vulnerable prisoners and that the 
officials acted wantonly in violation of the Eighth Amendment. 

Prison officials were found liable in Gilbert v. Selsky, 867 F. Supp. 159 
(S.D. N.Y. 1994) when they failed to train hearing officers in prisoner disciplinary 
proceedings. The district court found that prison supervisory personnel were per¬ 
sonally involved with violations of prisoners’ constitutional hearings. 

Conducting regular training of correctional personnel and fully document¬ 
ing that training can assist in defending allegations of inadequate training. In 
Vine v. County oflngahm, 884 F.Supp 1153 (W.D. Mich. 1995) the district court 
held that the sheriff and county were not deliberately indifferent to a prisoner 
who died in their custody after consuming methyl alcohol prior to arrest. The 
court ruled that the sheriff had provided the necessary training to his officers 
commensurate with state law, and they had also received substantial inservice 
training. The court noted that such claims would apply only if the conduct repre¬ 
sents usual or recurring situations with which officers must deal. 

Failure-to-train litigation has resulted in many judgements against supervi¬ 
sors and currently is the most frequently litigated area in the field of supervisory 
liability. Training should realistically focus on the essentials of the tasks of cor¬ 
rection officers’ and should target recurring situations or tasks. Emergency pre¬ 
paredness and special response team training should also be regularly conducted 
for appropriate personnel. Regular inservice training, designed for administrators 
and supervisors, should be required. For defense purposes, training seminars need 
to be tailored to meet job requirements on a regular basis, and must be thoroughly 
documented. 

E. Negligent Entrustment 

Negligent entrustment involves the supervisor’s failure to supervise properly or 
control an employee’s custody, use, or supervision of equipment or facilities 
entrusted to him or her (del Carmen, 1991). This theory of liability is different 
from negligent assignment: negligent entrustment goes beyond employee incom¬ 
petence to encompass incompetence in the proper utilization of the equipment 



332 


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entrusted to the employee. For example, legal claims may emerge for failing to 
direct the proper use of an impact weapon in a disturbance that later results in 
a serious injury or death of a prisoner. In Roberts v. Williams, 456 F. 2d 819 
(5th Cir 1971) a county farm superintendent had given an untrained trusty guard 
a shotgun and the task of guarding a workcrew. The court held the supervisor 
liable when the shotgun went off, seriously wounding a prisoner. 

In Slaken v. Porter, 737 F. 2d 368 (4th Cir 1984) the court awarded a 
prisoner $32,000 when evidence supported a claim of excessive force by correc¬ 
tion officers when they used high-pressure hoses, tear gas, and billy clubs to 
subdue him while he was in a one-man cell. The officers and supervisory person¬ 
nel alike were found to be deliberately indifferent to the prisoner’s constitutional 
right to be free from a known risk of harm. Supervisors were found liable since 
they should have been aware of the propensity for brutality of officers and had 
the duty to ensure that instruments of control were not misused. In Norris v. 
Detrick , 918 F. Supp. 977 (N.D. W.VA.. 1996) the court found that prison offi¬ 
cials properly administered two doses of chloracetaphenone (CN) gas when con¬ 
fronted by a prisoner with known martial arts skills who refused to return to his 
cell after numerous orders to do so. The court noted that whether the use of gas is 
unconstitutional depends on the totality of circumstances including provocation, 
amount of gas used, and the purposes for which the gas was used. 

The test of liability is that of deliberate indifference. The plaintiff must be 
able to prove that the officer was incompetent, inexperienced, or reckless, and 
that the supervisor knew or had reason to know of this. The defense for the 
supervisor is that proper supervision and training concerning the use and custody 
of equipment were exercised, but that despite adequate precautions, the act still 
occurred. 

F. Failure to Direct 

Failing to direct refers to a failure to inform employees of the special require¬ 
ments and limits of the job to be performed. Frequently this is interpreted as a 
failure of an administrator to promulgate policies and procedures that direct per¬ 
sonnel in the specific tasks of the job. In Ford v. Brier, 383 F. Supp. 505 (E.D. 
Wis. 1974) the court ruled that failing to establish adequate policies gives rise 
to civil liability. Examples may include the supervisor failing to inform employ¬ 
ees of the proper procedures for dispensing medication to prisoners or the limits 
of using force to restore order during a fight. 

In Women Prisoners v. District of Columbia, 877 F. Supp. 634 (D.D.C. 
1994), the district court found prison officials liable for violating female prisoner 
rights who were subject to sexual harassment. The court determined that the 
harassment was the result of a governmental custom and that officials failed to 



Section 1983 Liability 


333 


train employees properly in the area of sexual harassment. A federal district court 
in Estep v. Dent, 914 F. Supp. 1462 (W. D. Ky. 1996) granted injunctive relief 
to a prisoner with regard to his claim that the prison policy requiring him to cut 
his earlocks violated the Religious Freedom Restoration Act. Requiring the pris¬ 
oner to cut his earlocks would substantially violet the tenets of his Jewish faith. 
The court found that prison officials were deliberately indifferent and failed to 
establish that the policy was the least restrictive means of furthering its interests 
in maintaining security. 

A federal appellate court in Vineyard v. County of Murray, GA., 990 F. 
2d 1207 (11th Cir. 1993) found the county deliberately indifferent to the rights 
of prisoners to be free from excessive force by deputies who beat prisoners. The 
court stated that the county’s policy of condoning such behavior was the moving 
force that violated the prisoner’s constitutional rights. In Valencia v. Wiggins, 
981, F. 2d. 1440 (5th Cir, 1993), liability was assessed against jail officials who 
acted outside the boundaries of established policy. A prisoner was awarded 
$2,500 in damages and $27,000 in attorney fees when the court found that officers 
used excessive force against him in a jail disturbance. The officer struck a hand¬ 
cuffed, nonresisting prisoner, and placed him in a choke hold. The court found 
that the force and choke hold used violated the jail’s policy and constituted mali¬ 
cious and sadistic harm. 

The best defensible position for correctional administrators is to establish 
and maintain a current written policy manual for employee direction and institu¬ 
tional operations. Policies and regulations must be written within the framework 
of “legitimate penological objectives” as determined in the United States Su¬ 
preme Court’s ruling of Turner v. Safley, 107 S. Ct. 2254 (1987). Policies should 
be reviewed and/or revised annually, reflecting the current status of the law. The 
written policy should reflect not only the theory but also the actual practice of 
the department. Agency procedures should mirror written job descriptions, speci¬ 
fying the job functions of employees. Employees should be trained and tested in 
their comprehension of policy content. Each employee should have an individual 
current copy of the policy manual and it should be inspected periodically. Correc¬ 
tional supervisors must also be familiar with all policies and enforce their proper 
implementation. 

G. Failure to Supervise 

Allegations of failing to supervise employees involves abdication of the responsi¬ 
bility of overseeing employee activity. Failing to supervise employees properly 
can enhance litigation for failing to know about employee behavior. Examples 
may include tolerating a pattern of physical abuse of prisoners, racial discrimina¬ 
tion, and pervasive deprivation of prisoner rights and privileges. 



334 


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Permitting unlawful activities in an agency may constitute deliberate indif¬ 
ference, giving rise to liability. The usual standard is whether the supervisor knew 
of a pattern of behavior but failed to act on it. The question becomes, ‘ ‘What 
constitutes knowledge of a pattern of behaviors of employees?” Many courts 
have established that actual knowledge is required, while other courts state that 
knowledge can be inferred if a history of violations is established and the adminis¬ 
trator had direct and close supervisory control over the employee committing the 
violation. 

An Eighth Circuit Appellate Court in Williams v. White , 897 F.2d 942 (8th 
Cir. 1990) found that a prison superintendent may be liable for operating a prison 
with unsanitary and inhumane conditions and may be directly liable when he 
fails to train, supervise, or control his subordinates. 

In Treadwell v. Murray , 878 F. Supp. 49 (E.D. VA 1995) the court found 
that the prisoner failed to state a claim of deliberate indifference under Section 
1983, based on supervisory liability. As a result correctional officials prevailed. 
The prisoner asserted that correctional officials failed to oversee officers and 
medical personnel when the officials deprived him of an unsafe rehabilitative 
environment and initial inappropriate medical classification. 

In Giroux v. Sherman, 807 F. Supp. 1182 (E.D. PA 1992), a prisoner was 
awarded $36,000 in punitive damages, claiming on four occasions that at least 
eight correction officers beat and tormented him without provocation. Due to the 
beatings, he reinjured an old injury requiring hospitalization. While in the hospi¬ 
tal, he was also beaten and sustained a kidney and throat injury. Supervisory 
liability was also attached when the court stated that supervisors failed to identify 
and correct behaviors of the officers. Additional concerns about supervisory lia¬ 
bility emerged in Hudson v. McMillian, 112 S. Ct. 995 (1992), when the United 
States Supreme Court learned that a prison lieutenant watched two correction 
officers beat a handcuffed and nonresisting prisoner, and told them not to have 
“too much fun.” The officers were found liable for using excessive force and 
the lieutenant was found liable for condoning such actions by the officers. 

Courts hold that a supervisor must be ‘ ‘casually linked’ ’ to the pattern of 
constitutional violations by showing knowledge of it and that this failure to act 
amounts to approval and hence tacit encouragement that the pattern continue. 
Therefore, correctional administrators must not abdicate their responsibility of 
supervising employees by shutting their eyes or tolerating improper conduct. Per¬ 
formance evaluations are to be done periodically as well as informal appraisals 
of employee conduct to encourage proper conduct. Supervisors should review 
employee performance firsthand and review all incident reports. Remedial correc¬ 
tion of unsatisfactory employee performance should be documented and employ¬ 
ees who chronically fall below the accepted standard should be put on notice 
that employment is based on proper adherence to policy and conduct in the work¬ 
place. This strategy can go a long way in reducing potential supervisory liability. 



Section 1983 Liability 


335 


H. Negligent Failure to Discipline/Negligent Retention 

Failing to discipline involves the administrator’s failure to investigate complaints 
about employees and take appropriate action as warranted. Allegations can also 
stem from the supervisor failing to take action against an employee in the form 
of suspension, transfer, or termination when the employee has demonstrated un¬ 
suitability for the job. 

The supervisor has an affirmative duty to take all necessary and proper 
steps to discipline and/or terminate a subordinate who is obviously unfit for em¬ 
ployment. Unfitness may be determined either from acts of prior gross miscon¬ 
duct or from a series of prior acts of lesser misconduct, indicting a pattern (del 
Carmen, 1991). Supervisory liability may attach when the supervisor knew or 
should have known by exercising reasonable diligence in supervising the em¬ 
ployee. No supervisory liability attaches, however, when former acts of miscon¬ 
duct were unforeseeable. 

Correctional supervisors have a duty to enforce their own legitimate regula¬ 
tions and follow through with appropriate discipline as warranted. A correction 
officer’s rights were not violated when the Department of Corrections required 
him to wear an American flag patch on his uniform shirt, Troster v. Pennsylvania 
State Department of Corrections, 65 F.3d 1086 (3d Cir. 1995). In Flynn v. San- 
dahl, 58 F. 3d 283 (7th Cir. 1995) the warden did not violate a correctional 
officer’s due process rights by ordering him to submit to a psychiatric examina¬ 
tion after co-workers complained that he had threatened them with physical harm, 
because any privacy interest of the officer was outweighed by requirements of 
maintaining a stable prison work force. 

Administrative liability will be avoided when supervisors fulfill their basic 
functions of properly enforcing security practices and institutional policies. 
Prison officials’ termination of a correctional officer found sleeping on the job 
after taking medication for an arthritic knee was nol found to be arbitrary or 
capricious, Nebraska Department of Correctional Sendees v. Hansen, 283 Neb. 
233,470 N.W. 2d. 170 (1991). Correctional officials were not found liable when 
they took prompt effective disciplinary action after a female employee com¬ 
plained of alleged sexual harassment by a correction officer, Hirschfeld, v. New 
Mexico Corrections Department, 916 F. 2d 572 (10th cir. 1990). 

If the agency’s disciplinary system is deficient, supervisory liability may 
attach. In Gutierrez-Rodriguez v. Cartagena, 882 F. 2d 553 (1st Cir. 1989), the 
court held the police administrator personally liable when it found the disciplinary 
system to be grossly deficient, reflecting a reckless and callous indifference to 
the rights of citizens. The court found the following procedures inadequate: 

1. Officers investigated could refuse to testify or give a statement. 

2. The agency did not have any provision for remedial training as one of 
the disciplinary options. 



336 


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3. The withdrawal of a complaint closed the internal investigation without 
the agency doing anything about it. 

4. The immediate supervisors of the officers were not involved at all in 
the disciplinary process. 

Correctional administrators must have workable disciplinary procedures 
that are adequate and legal. They must protect the rights of both the employee 
and the complainant. Steps of progressive discipline must be outlined and em¬ 
ployees made aware of the potential consequences for employee misconduct. 
Supervisors must be trained in implementing appropriate disciplinary procedures 
in order to remediate or correct employee performance. Complaints regarding 
employees should be investigated and procedures are to be implemented in the 
proper method for conducting the investigation. Supervisory documentation of 
the investigation and the results should be kept in the employee’s personnel file. 


I. Sexual Harassment 

Sexual harassment has become one of the most arduous but potentially damaging 
problems faced by the administrator. Claims of sexual harassment fall within the 
purview of Title VII of the Civil Rights Act of 1964 under the general prohibition 
of sexual discrimination in the “terms of and conditions, or privileges of employ¬ 
ment.” Title VII prohibits employment discrimination based on gender, race, 
nationality, religion, and age. Failure to react appropriately not only has adverse 
effects for the agency but also may result in personal supervisory liability and 
disciplinary action. 

An administrator is generally liable for sexual harassment of his or her 
employees when the harassment results in an adverse employment action such 
as termination, demotion, or unwarranted transfer; and the harassment results 
in a severe or pervasive hostile work environment created by the supervisor. 
Supervisory liability will not attach when the supervisor can show evidence of 
acting reasonably to prevent harassment by acting promptly to correct the behav¬ 
ior. Supervisors must also be diligent to investigate prisoner complaints made 
regarding correctional officer misconduct in this area. 

The courts are increasingly reviewing cases of sexual harassment and sev¬ 
eral cases have emerged in corrections. In Speer v. Ohio Dept of Rehabilitation 
and Correction, 646 N.E. 2d 273, 1994, the court awarded a female corrections 
officer $7,500 in damages for invasion of privacy based on a male supervisor’s 
observation of her from the ceiling of a prison restroom. In Holland v. New Jersey 
Department of Corrections, No. 93-1683, 34 (D. N.J 1996), the court awarded 
$3.74 million to correctional employees who alleged racial and sexual harassment 
and discrimination in the workplace. Conversely, in Spicer v. Commonwealth of 



Section 1983 Liability 


337 


VA., Department of Corrections, 66 F. 3d 705 (4th Cir. 1995), the Court of Ap¬ 
peals found correction officials not liable for employees who made sexual re¬ 
marks about a female employee’s breasts when the Department made a prompt 
and effective response to remedy the situation after she complained. 

In two landmark decisions, the United States Supreme Court set the stan¬ 
dard for administrative liability in cases alleging sexual harassment. The cases of 
Faragher v. City of Boca Raton, 123 F. 3d 490, No. 97-569 (1998) and. Burlington 
Industries, Inc. v. Ellerth, 111 F. 3d 1530. No. 97-282 (1998), established the 
tenet that an administrator is responsible for the misdeeds of an employee when 
that employee uses the agency relationship to accomplish the misbehavior. In 
these cases, a supervisor used his or her actual authority to further the harassment. 
In making employment decisions, supervisors act directly as their employers’ 
agents so employers will always be liable for this (quid pro quo) type of harass¬ 
ment. 

The case is much less clear when a supervisor’s harassment does not end 
in an adverse employment decision. The supervisor may still use his or her author¬ 
ity to further the harassment, but the harassment may be no different from what 
a regular co-worker could commit. Something more than the supervisor’s position 
must be considered before an employer is found liable. 

Justice Souter noted that the primary purpose of Title VII “is not to provide 
redress but avoid harm” (p. 1518). In keeping with Congress’ intent to prevent 
sexual harassment, the Court decided to model its rule on the premise that an 
administrator should be rewarded for making an effort to stop harassment. Along 
with the administrator’s responsibility to thwart sexual harassment, the Court 
also recognized the victim’s responsibility to avoid harm by using the agency’s 
antiharassment policy. 

The Court has sent a clear message that Title VII requires employers to 
try to prevent sexual harassment in the workplace and to provide appropriate 
discipline as warranted. These cases not only require administrators to have a 
sexual harassment policy, but the agency must also enforce that policy by correct¬ 
ing promptly any sexually harassing behavior. Supervisors must be thoroughly 
familiar with the agency’s sexual harassment policy and provide periodic training 
to all employees. 

When the supervisor is on notice of sexual harassment, Title VII requires 
the administrator to take some action to stop the harassment. This still is not 
sufficient to avoid liability. The administrator has to prove that the complainant 
unreasonably failed to prevent or correct the problem by taking advantage of the 
sexual harassment policy or by correcting the problem in some other way. To 
meet this component of the defense, administrators must encourage their employ¬ 
ees to take advantage of the policy by promptly investigating and documenting 
all complaints, and by preventing retaliation against those who do complain. 



338 


Ross 


VI. CONCLUSIONS 
A. First Line of Defense 

Critical components of administration include planning, controlling, directing, 
budgeting, and supervising subordinates. Correctional administrators must also 
be concerned with the ever-present liability component that may emerge from 
fulfdling their basic supervisory functions. The first line of defense against litiga¬ 
tion is the administrator making a firm commitment and concerted effort to trans¬ 
form these administrative functions into a proactive risk management program 
to minimize future lawsuits. Administrators and supervisors represent the best 
potential for protecting an organization from liability, but the basics must first 
be in place. 


B. Liability Risk Reduction 

By integrating the fundamental components of management with liability risk 
reduction elements, administrators create a strategy to allow the organization to 
operate effectively and demonstrate a good faith effort toward reducing liability 
potential. 

The basic elements of a liability risk reduction program include the fol¬ 
lowing: 

1. Administrators should consider performing an analysis of agency inci¬ 
dents, complaints, audits, and lawsuits in order to identify problems 
specific to agency needs. After an assessment had been conducted su¬ 
pervisors should garner the assistance of legal counsel to determine 
the latest court decisions (state and federal) that affect prisoner and 
employee rights. 

2. Based on the outcome of the internal assessment, administrators are 
encouraged to revise outdated policies and develop new policies. Re¬ 
vising existing policy and procedure manuals is essential to complying 
with court rulings and changes in the law. Once polices are revised or 
new ones developed, administrators must keep supervisors updated on 
the revision and on administrative interpretations of them. This will 
ensure proper implementation and enforcement. It is recommended that 
agency policies be reviewed annually by an administrator and revised 
accordingly. Correctional officials are encouraged to maintain current 
polices and procedures, developed in accordance with state and profes¬ 
sional correctional standards. 

3. All supervisors and employees should receive training in the policy 
manual on a regular basis. Moreover, all employees should be trained 
regularly in the legal dimensions of the job and in frequently performed 



Section 1983 Liability 


339 


job tasks. All employees should receive regular competency-based 
training in all types of weapons and equipment commensurate with 
their duties. 

4. Administrators and supervisors must provide proper direction, supervi¬ 
sion, and reinforcement of training objectives to ensure that the mission 
of the agency is being implemented. Administrators must investigate 
complaints and follow established agency disciplinary procedures as 
the situation warrants. 

5. Written documentation of training, complaints, investigations, and em¬ 
ployee disciplinary actions by administrators and supervisors are essen¬ 
tial to corroborate management’s role in supervising subordinates. 
Written documentation provides a record of events and incidents, and 
establishes a process of reasonable actions taken. It will provide protec¬ 
tion to the individual supervisor and the agency in civil litigation. 

While administrative liability under Section 1983 is still developing, it has 
become a primary source of litigation in corrections. All indications suggest that 
this area of litigation will continue, and it is incumbent upon administrators to 
keep abreast of the legal standards imposed upon them. Through decisions of 
the courts, the days of unfettered supervisory discretion have been replaced with 
several theories of supervisory liability. Judicial intervention has created a mixed 
blessing for the administrator. 

On the one hand, court intervention has assisted administrators in acquiring 
more or new resources and facilities that have improved overall correctional oper¬ 
ations and employee performance. On the other hand, court intervention relative 
to administrative functions has created a legal arena that requires administrators 
to become more proactive in working with both prisoners and employees. Hence, 
prison administrators need to become more proactive in developing their own 
legal competencies and should maintain a working knowledge of the liability 
dimensions of their jobs. Moreover, they should be committed to educating their 
employees further in the legal nature of their responsibilities. This combined 
approach will go along way in preventing and/or successfully defending against 
the next lawsuit. 


REFERENCES 

Administrative Office of the United States Courts. (1996). Civil and trial statistics tables, 
Twelve month periods (1970-1996), Table C3, statistical division. Annual Report 
to the Director, Office of the United States Courts, Washington, DC. 

Alexander, R. Jr. (1993). Slamming the federal courthouse door on inmates, J. Criminal 
Justice 21: 103-115. 



340 


Ross 


Belbot, B. A.. and Marquart, J. W. (1998). The political community model and prisoner 
litigation: Can we afford not to try a better way? Prison J. 78(3): 299-329. 

Bennett, K., and del Carmen, R. V. (1997). A review and analysis of prison litigation 
reform act court decisions: Solution or aggravation? Prison J. 77(4): 405-455. 

Bronstein, A. J. (1987). Fifteen years of prisoner litigation: What has been accomplished? 
J. National Prison Project 11 : 6-9. 

Call, J. E. (1995). The Supreme Court and prisoner’s rights, Fed. Probation 59: 39-46. 

Champion, D. (1988). Some recent trends in civil liability by federal and state prison 
inmates, Fed. Probation 2: 43-47. 

Chilton, B. S., and Nice, D. C. (1993). Triggering federal court intervention in state prison 
reform, Prison J. 73(1): 30-45. 

Cullen, F. T., Latessa, E. J., Kopache, R., Lucien, X. L., and Burton, V. S. (1993). Prison 
warden’s job satisfaction, Prison J. 73(2): 141-161. 

del Carmen, R. V. (1991). Civil Liability in American Policing: A Text for Law Enforce¬ 
ment Personnel, Englewood, NJ, Prentice-Hall, Inc. 

del Carmen, R, V., and Kappeler. V. E. (1991). Municipal and police agencies as defen¬ 
dants: Liability for official policy and custom. Am. Police 10(1): 1-17. 

del Carmen, R, V., Bennett, K.. and Dailey, J. D. (1996). State-created liberty interest in 
prisons: What the court giveth, the court taketh away, Prison J. 76(3): 348-372. 

DiLulio, J. J. Jr. (1990). Courts, Corrections, and the Constitution: The Impact of Judicial 
Intervention on Prisons and Jails. Oxford Press, New York. 

Flanagan. T. J., Johnson, W. W., and Bennett, K. (1996). Job satisfaction among correc¬ 
tional executives: A contemporary portrait of wardens of state prisons for adults, 
Prison J. 76(4): 385-397. 

Freely, M. M., and Hanson, R. A. (1990). The impact of judicial intervention of prisons 
and jails: A framework for analysis and a review of the literature, in J. J. DiLulio, 
Jr., ed.. Courts. Corrections, and the Constitution: The Impact of Judicial Interven¬ 
tion on Prisons ami Jails, Oxford Press, New York, pp. 12-46. 

Hanson, R. A., and Dailey, H. W. (1995). Challenging the conditions of prisons and jails: 
A report on Section 1983 litigation. Bureau of Justice Statistics. U.S. Department 
of Justice, Washington, DC. 

Hawkins, R., and Alpert, G. P. (1989). American Prison Systems: Punishment and Justice, 
Prentice Hall, Englewood Cliffs, NJ. 

Kappeler, V. E. (1997). Critical Issues in Police Civil Liability, 2nd ed., Waveland Press, 
Inc., Prospects Heights, IL. 

Maahs, J. R., and del Carmen, R. V. (1995). Curtailing frivolous Section 1983, inmate 
litigation: Laws, practices, and proposals. Fed. Probation 59(4): 53-61. 

Manning, B. (1977). Hyperlexis: Our national disease. Northwestern Law Univ. Law Rev. 
71: 767-782. 

McCoy, C. (1981). The impact of Section 1983 litigation on policy making in corrections, 
Fed. Probation 45: 17-23. 

National Institute of Corrections. (1988). Competency profile of warden/superintendent. 
National Institute of Corrections, Washington, DC. 

Phillips, R. L., and McConnell, C. R. (1997). The Effective Corrections Manager: Max¬ 
imizing Staff Performance in Demanding Times. Aspen Publishers, Inc., Gaithers¬ 
burg, MD. 



Section 1983 Liability 


341 


Ross, D. L. (1997). Emerging trends in correctional civil liability cases: A content analysis 
of federal court decisions of Title 42 United States Code Section 1983: 1970-1994, 
J. Criminal Justice 25(6): 501-515. 

Scalia, J. (1997). Federal petitions in the federal courts, 1980-1996, Federal Justice Statis¬ 
tics Program, U.S. Department of Justice, Washington, DC. 

Singer, R. G. (1980). Prisoner rights litigation: A look at the past decade, and a look at 
the coming decade. Fed. Probation 44: 3-11. 

Thomas, J., Aylward, A., Casey, M. L., Moton, D., Oldham M„ and Wheetly, G. (1985). 
Rethinking prisoner litigation: Some preliminary distinctions between habeas cor¬ 
pus and civil rights, Prison J. 65: 83-106. 

Turner, W. (1979). When prisoners sue: A study of prisoner Section 1983 suits in the 
federal courts. Harvard Law Rev. 92: 610-63. 

Vaughn, M. S. (1996). Prison civil liability for inmate-against-inmate assault and 
breakdown/disorganization theory, J. Criminal Justice 24(2): 139-152. 

Vaughn, M. S., and Coomes, L. F. (1995). Police civil liability under section 1983: When 
do police officers act under color of law? J. Criminal Justice 23(5): 395-415. 

Vaughn, M. S., and del Carmen, R. V. (1993). Legal and policy issues from the Supreme 
Court’s decision on smoking in prisons. Fed. Probation 57(3): 34-39. 

Vaughn, M. S., and del Carmen, R. V. (1995). Civil liability against prison officials for 
inmate-on-inmate assault: Where have we been? Prison J. 75(1): 69-89. 

Wallace, D. H. (1992). Ruffin v. Virginia and slave of the state: A nonexistent baseline 
of prisoner’s rights jurisprudence, J. Criminal Justice 20: 333-342. 

Wright, K. (1994). Effective Prison Leadership , William Neil Publishing, Binghamton, 
NY. 


CASES CITED 

Benavides v. County of Wilson, 955 F. 2d 968 (5th Cir. 1992) 

Brandon v. Holt. 469 U. S. (1985) 

Brown v. Benton, 425 F. Supp. 28 (W.D. Okl. 1978) 

Bryan County Oklahoma v. Brown, 117 S. Ct. 1382 (1997) 

Burlington Industries, Inc. v. Ellerth, 123 F. 3d 490, No. 97-569 (1998) 
Carey v. Phiphus, 435 U. S. 247 (1978) 

City of Canton, Ohio v. Harris, 57 U. S. L. W. 4263 (1989) 

City of Oklahoma City v. Tuttle, 471 U. S. 808 (1985) 

City of St. Louis v. Praprotnik, 108 S. Ct. 915 (1988) 

Coleman v. Wilson, 912 F. Supp. 1282 (E. D. Cal 1995) 

Cooper v. Pate, 378 U. S. Ct. 546 (1964) 

Estelle v. Gamble, 429 U. S. 97 (1976) 

Estep v. Dent, 914 F. Supp. 1462 (W.D. Ky. 1996) 

Faragher v. City of Boca Raton, 111 F. 3d 1530, No. 97-282 (1998) 
Farmer v. Brennan, 114 S. Ct. 1970 (1994) 

Flynn v. Sandahl, 58 F. 3d 283 (7th Cir. 1995) 

Ford v. Brier, 383 F. Supp. 31 (N. D. Ill. 1974) 



342 


Ross 


Gilbert v. Selsky, 867 F. Supp. 159 (S. D. N. Y. 1994) 

Giroux v. Sherman, 807 F. Supp. 1182 (E. D. PA 1992) 

Gutierrez-Rodriguez v. Cartagena, 882 F. 2d 553 (1st Cir. 1989) 

Hayes v. Jefferson, 668 F. 2d 869 (6 Cir. 1982) 

Hirschfeld v. New Mexico Corrections Department, 916 F. 2d 572 (10th Cir. 1990) 
Holland v. New Jersey Department of Corrections, No. 93-1683, 34 (D. N. J. 1996) 
Hudson v. McMillian, 112 S. Ct. 995 (1992) 

Hutto v. Finney, 437 U. S. 678 (1978) 

Jones v. Wittenburg, 300 F. Supp. 707 (N. D. Oh. 1971) 

Jones v. Wittenburg, 440 F. Supp. 60 (N. D. Oh. 1977) 

Kentucky v. Graham, 473 U. S. 159 (1985) 

L W. v. Grubbs, 974 F. 2d 119 (9th Cir. 1992) 

Madrid v. Gomez, 889 F. Supp. 1146 (N. D. Cal. 1995) 

Maine v. Thiboutot, 448, U. S. 1 (1980) 

Marcheese v. Lucas, 758 F. 2d 181 (1985) 

Miller v. Carson. 401 F. Supp. 835 (M. D. Fla. 1975) 

Monnell v. Department of Social Services of New York, 436 U.S. 658 (1978) 

Moon v. Winfield, 388 F. Supp. 31, (N. D. IL 1974) 

Nebraska Department of Corrections v. Hansen, 283 233, 470 N. W. 2d 170 (1991) 
Norris v. Detrick, 918 F. Supp. 977 (N. D. W. VA. 1996) 

Owens v. Haas, 601 F. 2d 1242 (2d Cir. 1979) 

Parker v. Williams, 855 F. 2d 763 (11th Cir. 1988) 

Patsy v. Board of Regents of Florida, 457 U. S. (1982) 

Pembaur v. City of Cincinnati, 475 U. S. 469 (1986) 

Polk County v. Dodson, 454 U. S. 312 (1981) 

Preiser v. Rodriques, 411 U. S. 475 (1974) 

Roberts v. Williams, 456 F. 2d 819 (5th Cir. 1971) 

Slaken v. Porter, 737 F. 2d 368 (4th Cir. 1984) 

Smith v. Wade. 103 S. Ct. 1625 (1983) 

Sostre v. McGinnis, 405 U.S. 978 (1972) 

Speer v. Ohio Department of Rehabilitation and Correction, 646 N. E. 2d 273 (1994) 
Spicer v. Commonwealth ofVA Department of Corrections, 66 F. 3d 705 (4th Cir. 1995) 
Stokes v. Delcambre, 710 F. 2d 1120 (5th Cir. 1983) 

Treadwell v. Murray, 878 F. Supp. 49 (E. D. VA 1995) 

Troster v. Pennsylvania State Department of Corrections, 65 F. 3d 1086 (3d Cir. 1995) 
Turner v. Safley, 107 S. Ct. 2254 (1987) 

Valencia v. Wiggins, 981 F. 2d 1440 (5th Cir. 1993) 

Vine v. County of Ingham, 884 F. Supp. 1153 (W. D. Mich. 1995) 

Vineyard v. County of Murray, GA, 990 F. 2d (11th Cir. 1993) 

Will v. Michigan Department of State Police, 491 U. S. 58 (1989) 

Williams v. White, 897 F. 2d 942 (8th Cir. 1990) 

Wilson v. Setter, 11 S. Ct. 2321 (1991) 

Women Prisoners v. District of Columbia, 877 F. Supp. 634 (D. D. C. 1994) 



19 

Jail Administration 
and Management 

Kenneth E. Kerle 

American Jail Association, Hagerstown, Maryland 


I. LOCAL CORRECTIONS AND ITS DEVELOPMENT 

American local correctional history is grounded in our historic past. This country 
developed an inclination to make most local government posts elected ones in 
part as a reaction to the colonial legacy of appointed administrators and governors 
by the British monarchy. The elected sheriff was a familiar part of county govern¬ 
ment from its beginning. 

As government evolved into the 20th century, many states eventually en¬ 
acted civil service laws that guaranteed employment rights to those who work in 
state and local government. This coverage did not extend to top management in 
most agencies including sheriffs’ departments. If a sheriff retired, was defeated 
in the next election, or dropped out of office for any reason, his subordinate top 
management team became vulnerable. The new sheriff in question could dis¬ 
charge the whole staff or, if staff had civil service coverage, some of the top 
management individuals could revert to lower positions. Today, better-educated 
jail administrators, on accepting a job with a sheriff’s department or a county- 
administered jail, negotiate a contractual arrangement that legally guarantees cer¬ 
tain rights and financial payments to them if their early departure is precipitated. 
A challenge to jail progress is the fact that different elected sheriffs have different 
philosophies of criminal justice. When a newly elected sheriff replaces another 
sheriff with diametrically opposed point of view on whether to “punish” or “re¬ 
habilitate” inmates, it can have a devastating impact on jail staff committed to 
the criminal justice philosophy of his predecessor. In one county with which the 
writer is familiar, the new sheriff spent much of his time on the golf course and 


343 



344 


Kerle 


allowed his department to drift along. Many staff resigned before long with the 
feeling that top management cared little about how they carried out their work. 
This illustration indicates that some jails still have a way to go in the development 
of criminal justice goals, which do not disappear at the next election. Like it or 
not, top management in jails is still subject to the vagaries of politics. 

A. Author’s Interest and Involvement 

Observations about jail administration and its operation in this chapter reflect the 
writer’s background as managing editor of the American Jail Association maga¬ 
zine, American Jails , since it began in 1987, his opportunity to work in a jail, 
and his personal visits to over 700 jails in 48 states during the past 21 years. 
Interested people, including over 100 academicians, have contributed over 1,000 
articles to American Jails, some of which bear directly on the subject of jail 
administration. 

B. No Two Jails Alike 

Jails possess many similarities, but no two jails function in the same way due in 
part to the personalities of the individuals who work in them. If there is one 
truism on which the reader may rely, it is that one can discover the best and the 
worst of jails in each state that has legislatively mandated a local jail system. 

Six states (Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Ver¬ 
mont) opted for a combined jail/prison system, recom m ended by the Wickersham 
Commission in the 1930s, the 1967 President’s Commission on Law Enforcement 
and Administration of Justice, and the 1973 National Advisory Commission on 
Criminal Justice Standards and Goals (Schafer, 1994: 35). West Virginia, by the 
early part of the 21st century, will have completed organizing its 55 counties into 
10 regional jail systems responsible to a West Virginia Regional Jail Authority 
(Parsons, 1994: 51). 

The American jail universe encompasses a range from the small ‘ ‘mom 
and pop” jails with capacities from 0 to 50 to the megajail systems like the 
New York City Department of Corrections and the Los Angeles County Sheriff’s 
Department jail system. Each of these megasystems has over 20,000 inmates 
scattered in a number of buildings in their respective metropolitan areas (Who’s 
Who in Jail Management, 1999). 

II. JAIL ADMINISTRATION, JAIL AUDITS, LAWSUITS, 

AND TRAINING 

A. Jail Administration 

Approximately 75% of the jails in the United States at the beginning of the 21st 
century fall under the jurisdiction of elected sheriffs ( Who's Who in Jail Manage- 



Jail Administration and Management 


345 


ment, 1999). The vast majority of sheriffs in this country run jails, conduct a 
police function with road patrols, operate detective bureaus, function as an arm 
of the court by serving warrants, and, in some instances, provide courtroom secu¬ 
rity. 

The overwhelming number of jails in this country belongs to the classifica¬ 
tion of small jails (i.e., with rated capacities from 1-50). Of the 3,201 jails identi¬ 
fied by the American Jail Association, 1,345 had rated capacities of 0-50 {Who's 
Who in Jail Management, 1999). 

Dennis Kimme reported that small jails represent 63% of the nation’s jails 
and 12% of the nation’s jail inmates (Kimme et al., 1985: 3). In contrast, the 25 
largest jail jurisdictions accounted for 28% of all the inmates in 1995 (Gilliard 
and Beck, 1996: 12). 

Historically, many sheriffs used jail assignments as punishment for those 
deputies who failed on police patrol, paid jail deputies less money, and compelled 
those who wished to work as officers on the road to do a working stint in the 
jail. This indifferent approach to jail operations in the criminal justice field guar¬ 
anteed a crop of jail officers with low morale, a cavalier attitude toward the job 
of supervising inmates, and rapid turnover (Reed, 1993: 10). 

The seeds of trouble had been sown years before in an era when disinter¬ 
ested attitudes of local elected officials toward local corrections flourished. A 
title of a book, Jails—The Ultimate Ghetto of the Criminal Justice System (1975), 
by Ronald Goldfarb, captured the jail scene well. Casual laissez-faire jail opera¬ 
tions of these important but ignored community agencies had spanned decades, 
going back into the 19th century, until federal court activism forced local govern¬ 
ments to take action. For county boards and sheriffs it proved too late and these 
jurisdictions suddenly found themselves ensnared in the court thicket of litigation 
for constitutional rights violations of the incarcerated. 

The lawsuit tidal wave began against prisons in the 1960s and hit jails in 
the early 1970s. These forced many states for the first time to legislate jail stan¬ 
dards and mandate training for new jail officer recruits. 

The first jail case, Jones v. Wittenberg, 330 F. Supp. 707, W.D. Ohio, 1971, 
found Lucas County, Ohio, under the thumb of a federal judge. This judge, 
in turn, designated a law professor at a local law school in Toledo to scrutinize 
jail operations in the name of the court and to cite deficiencies, for example, 
in the areas of medical care, food service, exercise, programs, training, antiquated 
facilities, crowding, personnel, fire safety, ventilation, hygiene, and others, that 
did not conform to minimal constitutional standards defined by the court. New 
lawsuits similar to this one became regular occurrences in many federal dis¬ 
tricts across the country until, by the 1980s, 419 jails admitted to having 
been under court order (Kerle and Ford, 1982: 43). A total of 529 jails reported 
being a party in a pending lawsuit (Kerle and Ford, 1982: 51). Jail change of this 
nature inspired through lawsuits precipitated action by local officials to attempt 



346 


Kerle 


to erect protective barriers to the government treasuries open to these lawsuit 
incursions. 


B. Procedural Guidelines 

One badly needed recommendation that became a part of the National Sheriffs’ 
Association Jail Audit System stated, ‘ ‘Does written policy and procedure provide 
that the facility is managed by a single administrative officer to whom all employ¬ 
ees or units of management are responsible?” Another guideline asked, “Is there 
an operations manual or written policies and procedures for operating the facil¬ 
ity?” (National Sheriffs’ Association, 1979:9). 

This may sound peculiar to people who have worked in other government 
agencies or the private sector. However, in my visits to hundreds of jails in the 
48 states, I found many that either lacked written policy manuals and procedures 
or, if the jails possessed them, often ignored proper enforcement of the policies, 
which ultimately culminated in legal action. For example, in a sheriff’s depart¬ 
ment where I served as an unpaid consultant for 4 years, the new sheriff with 
20 years of law enforcement experience discovered no written policies or proce¬ 
dures for the jail. Jail operations in this instance equaled crisis management, with 
each staff member using his own judgment as to how to manage the inmates. 

One of this sheriff’s first priorities was getting a policy manual written that 
would instruct staff on proper management and supervisory procedures to be 
followed by jail staff during the three working shifts. 

Many elected sheriffs have no criminal justice background when they as¬ 
sume office. Most states still do not have requirements that people running for 
the office of sheriff possess some working credentials in the criminal justice sys¬ 
tem. If a candidate complied with the voting eligibility requirements to run for 
office, it seemed that nothing else mattered. Hence, a truck driver or garage me¬ 
chanic with good political instincts might find himself sheriff of a department 
with a multimillion dollar budget and a staff who looked to top management for 
direction. 

To improve the administration of sheriff’s departments the Law Enforce¬ 
ment Assistance Administration (LEAA) funded a National Sheriffs’ Institute, 
which began in 1973 at the University of Southern California to provide the 
opportunity for first-term sheriffs to learn management skills for the office of 
sheriff. This lasted until 1981. Federal funding ceased at this time until 1993, 
when the National Institute of Corrections supported the institute using the ratio¬ 
nale that the elected sheriff was the chief correctional officer of the county. 

Sheriffs were invited to attend 2 weeks of classes in Longmont, Colorado, 
followed by 2 days of seminars conducted on a regional basis that focused on a 
single-issue leadership theme (O’Neil, 1999). The National Institute of Correc- 



Jail Administration and Management 


347 


tions Jail Center had already opened its doors in 1977 and placed considerable 
emphasis on the management training of jail administrators (Kerle, 1998: 73). 

C. Jail Audits 

The National Institute of Corrections Jail Center, a federal government agency, 
also funded a grant in the 1980s to enable the National Sheriffs’ Association to 
conduct jail audits to determine the extent of compliance with a series of guide¬ 
lines developed on jail operations. The audit covered the areas of administration, 
training, security, food services, medical services, safety and sanitation, physical 
plant, inmate rights and discipline, inmate procedures, inmate services and pro¬ 
grams, and community resources. These audits were strictly voluntary and re¬ 
quested by the sheriffs in letters to the National Sheriffs’ Association (NSA) Jail 
Operations Division. 

As senior auditor for 66 jail audits in 20 states, I saw good jail operations 
and bad jail operations. Some jails, already under court order, suffered both physi¬ 
cal plant and administrative shortcomings. The audit took a working week. Usu¬ 
ally, two auditors would fly to the county jail in question on a Monday, undertake 
the audit on Tuesday, Wednesday, and Thursday, and then hold a briefing at the 
conclusion of the audit on Friday for the sheriff and jail administrator before 
returning home. The purpose of the audit was to measure the degree of compli¬ 
ance with the NSA guidelines against the written policies and procedures of the 
jail in question. This involved talking with jail management, staff (on all shifts), 
and inmates. A written report followed. 

The auditors would tell the jail management that the audit should be shared 
with the elected county board, complete with a cover letter outlining the intent 
of the audit. This notification to the county board with the enclosed audit sufficed 
to guarantee jail management a certain amount of insulation against future jail 
litigation. Once the sheriff or jail administrator had notified the county elected 
board in writing that the audit had been conducted, it then became the responsibil¬ 
ity of the elected body to see that jail deficiencies that required money were 
corrected. 

Promoting jail administrative and operational improvement in this manner 
seems a poor way for jails in the criminal justice system to do business, but in 
part it is a reflection of many states’ failure to legislate jail standards and guide¬ 
lines and undertake their proper enforcement. 

D. The American Jail Association and Training 

The American Jail Association (AJA), bom in 1981 as a result of the merger of 
the National Jail Association and the National Jail Managers Association, has 
worked hard to improve jail operations and management. AJA is dedicated to: 



348 


Kerle 


Banding together all those concerned with the custody and care of persons 
locally confined 

Advancing professionalism through training, information exchange, and 
technical assistance, publications, and conferences 
Providing leadership in the development of professional standards, perti¬ 
nent legislation, management practices, programs, and services (AJA 
Brochure. Invest in your future). 

Over its short history, AJA has published a series of jail operations bulletins 
with accompanying videos that cover basic jail techniques and explore the latest 
developments in corrections. It has also published a series of jail manager bulle¬ 
tins that emphasize techniques and strategies to assist with supervisory and mana¬ 
gerial issues related to jail operations. In addition, it organizes two or three jail 
training seminars a month designed to reach jail supervisors and managers. Some 
of the recent training courses included the following topics: 

Transition into a new jail 

Leadership, ethics, and visioning for jail managers 
Development and implementation of jail policies and procedures 
Implementation of successful jail programs 

Development of training for line supervisors in direct supervision jails 

Preparation and training for hostage negotiations 

Facilities maintenance management for the modern jail 

Juveniles in adult jails: safety, security, and programming 

Disorder management in the jails 

Basic jail security, investigations, and court testimony 

Legal issues for 1999 and beyond (AJA 3-day training program brochures) 

Each year at the annual AJA training conference a series of training/educa- 
tion workshops cover the jail landscape. A few of the topics include: 

Management of direct supervision in a hybrid jail system 

Jails and community relations: No longer “out of sight and out of mind’’ 

Good writing skills 

Management of juveniles in adult jails (NIC cosponsor) 

Plan for disaster: Failure to plan is planning to fail (American Jails 1999a). 


III. DIRECT SUPERVISION JAILS: A NEW ERA 

Jails, historically, have followed the military model. In the old linear jail setting, 
an officer confronted with a problem would send it up the chain of command to 
await a decision by the shift sergeant or shift lieutenant. In the direct supervision 
environment of participatory management, the line officer was expected to be- 



Jail Administration and Management 


349 


come involved in hands-on management to resolve inmate complaints and prob¬ 
lems. 

The basis of jail management in the direct supervision environment relies 
heavily on the nine philosophical principles of direct supervision that undergird 
the whole concept: 

Effective control 
Effective supervision 
Need for competent staff 
Safety of staff and inmates 
Manageable and cost-effective operations 
Effective communications 
Classification and orientation 
Justice and fairness 

Staff ownership of operations (Nelson and O’Toole, 1983: 29-36; Per- 
roncello, 1995: 63). 

For the past two decades, many counties in the United States have opted 
to build podular designed jails. Jails with this new architecture comprise a number 
of self-contained pods holding from 40 to 70 inmates, depending on the jurisdic¬ 
tion and the extent of the crowding. In each pod, a line officer assumes control 
and takes responsibility for the direct management of the inmates under his or 
her care. In contrast to the jails of older linear-style vintage, where the correc¬ 
tional staff made rounds and cell checks every 30 minutes, officers in the podular 
designed jails are physically present to supervise the inmates during the entirety 
of their working shifts. Thus, a new jail era was born. 

In the old linear jails, officers who made periodic cell checks were not 
present much of the time in the cellblock areas. Instead the strongest, smartest 
inmate in the cellblock asserted the right to leadership, which could serve to 
undermine the jail regulations. The new direct supervision setting guaranteed the 
presence of an officer at all times who saw to it that the jail rules and regulations 
were observed by the inmates in the pod. 

When Warden Ray Nelson opened the first podular designed direct supervi¬ 
sion jail for the Federal Bureau of Prisons in Chicago in 1975, he had been told 
to use women officers as managers in some of the male pods to comply with 
equal opportunity employment requirements. As the top administrator, he feared 
the worst and fully expected chaos and mayhem when the institution opened. 
Much to his surprise, nothing happened out of the ordinary and the women super¬ 
visors did a highly creditable job of managing male inmates. As he wrote: 

The women officers, about whom I had been most fearful, excelled in manag¬ 
ing the behavior of male inmates on their units. The women benefited from 
the cultural conditioning of the males in our society in their relationship to 



350 


Kerle 


females. As a result, male inmates on units supervised by female officers 
were observed to be more attentive to their personal appearance, to monitor 
the customary foul language, and to anticipate and initiate the performance 
of work assignments in order to avoid having a women “order them 
around”—to many, a fate worse than the “hole.” (Nelson 1988, 12) 

Direct supervision jails at the local level have attained popularity. Many 
jurisdictions have either built them or have them in the planning stage. 

Each year on the first day of the annual 4 'h day training conference and 
jail expo of the American Jail Association a symposium is held on direct supervi¬ 
sion. In Fort Worth, Texas (May, 1999) the 13th annual AJA all-day symposium 
on direct supervision was presented and, as usual, several hundred people from 
all over the country attended. This abiding interest in direct supervision jails has 
been sustained at the local level since the early 1980. Many jail administrators 
who started out in the old linear jails have been persuaded that direct supervision 
is the jail management road to pursue. The National Institute of Corrections Jails 
Division has published a directory that documents the growth. 

The first direct supervision jail in local corrections opened in 1981 in Con¬ 
tra Costa County (Martinez, CA), with around 400 inmates. By 1995 when the 
NIC directory appeared, it revealed the following figures: 


Podular direct supervision facilities. 146 

Facilities converted to direct supervision. 6 

Facilities with both indirect and direct supervision. 52 


When one counts the rated capacities of the above institutions listed in the 
directory, the total comes to over 94,000 beds! 

However, one cannot judge a book by its cover. A jail administrator who 
opened a direct supervision jail discovered that some of his middle management 
supervisors (corporals, sergeants) violated the tenets of direct supervision through 
direct interference in the pods, which tended to undermine the authority of the 
pod officers in charge. These supervisors had refused to delegate supervisory 
authority to the pod officers. 

The jail administrator decided to put the first-line supervisors through a 
specialized 40-hour course in direct supervision. As part of the regimen all the 
sergeants and corporals worked in pods based on a standard 56-day rotation. 
Total participation of all the jail supervisors provided top management with the 
opportunity to see whether their staff could function appropriately in a direct 
supervision environment. Part of the training required that each supervisor, prior 
to entering the pod, compile a statement about his or her idea of direct supervi¬ 
sion. This writing exercise was repeated after a 30-day stint of managing the pod 
inmates. It revealed a much better understanding of the management dynamics 
of pod supervision and a better appreciation of the environment in which the pod 
officer operates. 






Jail Administration and Management 


351 


Upon finishing the 56-day rotation the supervisors met with the transition 
training team captain in one-on-one counseling sessions. The results showed: 

One early retirement was experienced. 

The vast majority of written opinions were supportive of direct supervision 
as a viable inmate management system. 

There was a better understanding of the pressures, frustrations, and needs 
of pod officers by all corporals and sergeants. 

Communication between line staff and first-line supervisors was enhanced. 

The initial objective of this project was met. Each corporal and sergeant 
developed a better base upon which to build toward the future as a result of his 
or her experience in direct supervision housing (Parrish, 1991: 42). 

Direct supervision, unfortunately, has its downside due to inmate crowding, 
lack of funding, and lack of training for staff. One study commissioned by NIC 
compared three podular direct supervision jails and looked at such areas as the 
removal of televisions from the inmate dayrooms, the rotation of experienced 
jail administrators out of the jail to be replaced by inexperienced administrators, 
excessive crowding of the pods, and a lack of staff. 

This study discovered that a trend toward posting one officer to 74 inmates 
was becoming more common. Formerly, direct supervision jail staffs got from 
40 to 80 hours of direct supervision training, midmanagers received special train¬ 
ing, other direct supervision jails were visited by those who had worked in the 
direct supervision setting, all staff underwent interpersonal communication skills 
training, and NIC courses were attended. Now it had started to change (Farbstein 
et al., 1996). Why? 

An analysis presented at the 1996 American Jail Association Direct Super¬ 
vision Symposium focused on counties that in theory accepted the idea of direct 
supervision without a thorough comprehension of the implications of this man¬ 
agement concept. The presenter noted that in these jails where direct supervision 
generated problems, there had been no administrative acceptance or positive com¬ 
mitment to direct supervision principles, and that the leadership had failed to 
educate itself as to what the management change required. 

Midmanagers no longer received any special training, other jails weren’t 
toured, and transition team leaders possessed only limited knowledge of direct 
supervision. Inmate programs underwent a reduction, training on the ways to 
update policy and procedures declined, and state correctional training academies 
spent little time on direct supervision. The presenter raised the question as to 
how long many of the shortcomings listed below could be endured: 

Double bunking 

More than 75 inmates per unit 

Two officers in a housing unit 



352 


Kerle 


Long periods of lockdown 
Limited training 
Staff shortages 
No classification options 

Disciplinary units full to capacity (Liebert, 1996: 36, 37) 


IV. CONCLUSION 

Court litigation, the direct supervision jail movement, the National Institute of 
Corrections Jail Center, the National Sheriffs’ Association, and the newly ener¬ 
gized American Jail Association in the latter part of the 20th century have all 
had an impact on the way jails operate. Jail administrators and sheriffs of today 
are better educated and more open to collaborative proposals involving the com¬ 
munity. 

Leaders in the jail movement who will have lasting value appear to be 
those who deliberately court active community involvement and participation in 
jail activities aimed at achieving community understanding of how the jail, as a 
community organization, can work in tandem with other criminal justice agencies 
and agencies in the community toward the reduction of crime. All of this consti¬ 
tutes a significant step in the direction of turning the local criminal justice system 
into a cooperative venture that actually functions like a system. 


REFERENCES 

American Jail Association Brochure, Invest in Your Future. 

American Jail Association, Three-Day Training Program Brochures American Jails 
(1999a). AJA Workshop Overview, Jan/Feb. 

American Jails (1999b). Eighteenth Annual Jail Training Conference and Jail Expo, 
May/June. 

Farbstein, J., Liebert, D„ and Sigurdson, H. (1996). Comparing Three Podular Direct 
Supervision Jails, National Institute of Corrections Jail Division, Longmont, CO. 

Gilliard, D. K., and Beck, A. J. (1996). Prison and jail inmates, 1995, Bureau of Justice 
Statistics Bulletin NCJ—161132. Washington, D. C. 

Goldfarb, R. (1975). Jails—The Ultimate Ghetto of the Criminal Justice System , Anchor 
Press/Doubleday, Garden City, NY. 

Jones v. Wittenberg (1971). 330 F. Supp. 707, W. D. Ohio. 

Kerle, K. E. (1998). American Jails: looking to the Future. Butterworth-Heinemann, 
Boston, MA. 

Kerle, K. E., and Ford, F. R. (1982). The State of Our Nation’s Jails — 1982, The National 
Sheriffs’ Association, Washington, D. C. 

Kimme, D. A., Bounds, B. R., Bowker, G. M., Deichman, R. G., Lakner, E., and Maase, 



Jail Administration and Management 


353 


D. C. (1985). The Nature of New Small Jails — Report and Analysis, National 
Institute of Corrections, Longmont, CO. 

Liebert, D. R. (1996). Direct supervision jails—the second decade: The pitfalls, Am. Jails, 
Sep./Oct. 

National Sheriffs Association (1979). Jail Audit System. National Sheriffs’ Association, 
Washington. D. C. 

Nelson, W. R., and O’Toole, M. (1983). New Generation Jails. National Institute of 
Corrections, Longmont, CO. 

Nelson, R. R. (1988). The origins of the podular direct supervision concept: An eyewitness 
account. Am. Jails. Spring. 

O’Neil, J. (1999). Phone call; former Executive Director, Colorado State Sheriffs’ Associ¬ 
ation. Consultant, National Sheriffs Association, April 8. 

Parrish, D. M. (1991). Transition training for first-line supervisors. Am. Jails Jul./Aug. 

Parsons, L. F. (1994). The regionalization of West Virginia’s jails. Am. Jails Jul./Aug. 

Perroncello, P. (1995). Toward a new direct supervision paradigm. Am. Jails, Part I, 
Jul./Aug.; Part II, Sep./Oct. 

Podular Direct Supetyision 1995 Directory. ( 1995). National Institute of Corrections Jails 
Division, Longmont, CO. 

Reed, S. O. (1993). The plight of jail deputies in a sheriff’s office. Sheriff Jan./Feb. 

Schafer, N. E. (1994). State-operated jails: How and why. Am. Jails Sep./Oct. 

Who’s Who in Jail Management , 3rd ed. (1999). American Jail Association, Hagerstown, 
MD. 



This Page I nbentionally Left Blank 



20 

Publicized Executions and the 
Incidence of Homicide: 
Methodological Sources of 
Inconsistent Findings 

Steven Stack 

Wayne State University, Detroit, Michigan 


I. INTRODUCTION 

The last 70 years of research on the effect of executions on the homicide rate 
has typically failed to measure whether the national public was made aware of 
the executions (Lester, 1998; Stack, 1995a). That is, most executions were largely 
only publicized locally or in the back pages of some newspapers. Only a tiny 
fraction of executions received national publicity in the postwar through 1967 
era (Stack, 1987b). If executions receive no mention in the national news, the 
national public will probably not be aware of them. If the public is not aware of 
something, I assume that it will have no effect on them. 

For example, a book-length review of hundreds of studies found only four 
that incorporated some measure of public awareness (Bedau, 1982:94). Public 
awareness is a necessary first step in forming the public’s perceptions of the 
consequences of homicide. That is, without public awareness of executions, it is 
difficult to argue that executions should have any effect on homicide (e.g., Bailey 
and Peterson, 1989; Stack, 1990a). 

The measurement of public awareness of executions may be critical in this 
body of research since most executions never make national news. Stack (1987b) 
reports that, for example, in the high execution era of the 1950s there were on 
the average only five executions per year that made national news, out of a total 


355 



356 


Stack 


of 50 or more per year. Most executions were not publicized outside of the locale 
and state where they were performed {Time, 1983: 30). 

A check on media coverage of executions in the 1980s found that while 
most of the first 10 post-Furman executions (which started in 1977) made all three 
television networks (ABC, CBS, and NBC), by 1984 most executions received no 
network television news coverage at all (Joint University Libraries, 1977-1985; 
Stack, 1988a). Again, if the public is not aware of executions, I assume they will 
have no deterrent or other impact on the public’s behavior. Clearly the relation¬ 
ship between the death penalty and homicide needs to make a distinction between 
publicized and unpublicized executions (e.g., Bailey and Peterson, 1989; Stack, 
1990a). 

The present systematic review is limited to studies that measure the extent 
to which the public is aware of executions. However, even this stream of research 
has been marked by inconsistent findings. For example, some research reports a 
decrease in homicides after publicized executions (e.g., Phillips and Hensley, 
1984; Stack, 1987, 1990a), while other research does not (e.g., Dann, 1935; Bai¬ 
ley and Peterson, 1989; Cochran et al., 1995; Stack, 1993). The decline in homi¬ 
cide after an execution occurs has been termed a death dip effect (Stack, 1995a). 
The present chapter explores explanations of the inconsistent findings. Its main 
focus is on differences among studies in their assumptions about the presumed 
length of any decline in homicide after a publicized execution. Other concerns 
include whether or not executions for rape are included in the analysis, and the 
checking for race-specific effects of executions on homicide. 


II. THEORETICAL CONCERNS 

Caution needs to be exercised by the reader before interpreting any connection 
between publicized executions and homicide. The current review employs the 
concept of a “death dip” effect. A death dip is a decline in homicide observed 
after an execution. Any death dip can be attributed to any combination of at least 
three explanations. First there is the well-known deterrence notion that publicized 
executions may reduce homicide by increasing the public’s fear of punishment. 

However, there are two other less well known perspectives: normative vali¬ 
dation and victim mobilization (Gibbs, 1975, 1976). In the Division of Labor 
Durkheim developed the idea that punishments function to reinforce the social 
condemnation of crimes. As Gibbs (1975) points out, punishments may reduce 
crime because people think that homicide is wrong, not because they fear being 
executed. Finally, victim mobilization may explain the same drop in homicides 
after executions. The publicized executions may remind people of the danger that 
they might be killed as a victim of a homicide. People then may take more than the 



Publicized Executions and Homicides 


357 


usual amount of precautions for their own safety in the period after a publicized 
execution. These explanations are not mutually exclusive. 


III. ANALYSIS OF PREVIOUS RESEARCH 

Research studies on publicized executions and homicide were located through 
two means: a search through computerized databases including Sociofile and 
Criminal Justice Abstracts , and then a search through the located articles’ bibli¬ 
ographies. A total of 20 studies was found. The studies were published during 
the last 63 years (1935-1998) (Table 1). 

An important assumption guiding the literature on media impacts on behav¬ 
ior is the length of time that a given media story will have an impact on people. 
Will a story affect behavior for just 1 day, a week, or longer? For example, in 
research on the effects of publicized suicides on national suicide rates, the answer 
has always been 2 weeks or less (e.g., Phillips, 1974; Stack, 1987a; Wasserman, 
1984; see review in Stack, 1990.) A suicide story might trigger additional copycat 
suicides for up to 2 weeks after the story appears. Given the continual flow and 
changing nature of headline news, it has long been contended, as well as demon¬ 
strated, that the impact of suicide stories on suicide in the real world is largely 
confined to 10 days after the story. Indeed, most of the effect occurs within the 
first 4 days after the publicized suicide (Stack, 1990b). 

No one has ever argued that the impact of a suicide story on suicide rates 
should last for a year, or even for 2 months. Nevertheless, studies in the homicide 
literature assume either long-term (2 months or more) or permanent effects of 
publicized executions on homicide. 

A. Permanent or Long-Term Effect Models 

A long-term effect is measured here as 2 months or more. A total of five studies 
were located that used such a long-term experimental period. Long-term effect 
models includes ones based on the United States as a. whole, England, Oklahoma, 
and Philadelphia. 

1. USA 

McFarland (1983) investigated the impact of each of the first four post-Furman 
executions on weekly counts of homicide. McFarland reports that there was no 
significant increase in homicide after the publicized executions. He uses a sta¬ 
tistical analysis based on an autoregressive, integrated, moving average model 
(ARIMA) in which past values of a dependent variable are used to predict its 
future values. 



Table 1 A Summary of Research on Publicized Executions and Homicide, 1935-1998 


Reference 

Years 

Includes executions 
for rape 

Incubation 

period 

Death 

dip 

MULT 

problem 

Studies of the United States 

McFarland (1983) 

1976-1981 

No 

60 days 

No 

NA 

Phillips and Hensley 

1973-1979 

No 

30 days? 

Yes 

NA 

(1984) 

Stack (1987) 

1950-1980 

No 

30 days 

Yes 

No 

Bailey and Peterson (1989) 

1950-1986 

No 

30 days 

No 

Yes 

Stack and Gundlach (1990) 

1950-1986 

No 

30 days 

Yes 

No 

Bailey (1990) 

1976-1987 

No 

30 days 

No 

?? 

Bailey and Peterson (1991) 

1976-1987 

No 

30 days 

No 

?? 

Stack (1995) 

1976-1985 

No 

4 days 

No/blacks 

No 


1976-1985 

No 

4 days 

Yes/whites 

No 

Studies of England 

Phillips (1980) 

1858-1921 

No 

1 week 

Yes 

NA 

Bowers (1988) 

1858-1921 

No 

70 days 

No (increase) 

NA 

Studies of Alabama 

Stack and Allen (1989) 

1950-1966 

No 

30 days 

No 

No 

Studies of California 

Graves (1956) 

1946-1955 

No 

1 week 

No 

NA 

Lester (1989) 

1946-1955 

No 

30 days 

No 

NA 

Stack (1998) 

1946-1955 

No 

30 days 

Yes. -12.7% 

NA 

Studies of Georgia 

Stack (1993) 

1950-1965 

No 

30 days 

No, +6.8% 

NA 

Studies of South Carolina 

King (1978) 

1950-1963 

Yes 

30 days 

No 

NA 

Stack (1990a) 

1950-1963 

No 

30 days 

Yes 

NA 

Studies of Oklahoma 

Cochran et al. (1994) 

1989-1991 

No 

100+ days 

No 

NA 

Studies of Philadelphia 

Dann (1935) 

1927-1932 

No 

60 days 

No (increase) 

NA 

Savitz (1958) 

1944-1954 

No 

60 days 

No (-4.84%) 

NA 


358 Stack 



Publicized Executions and Homicides 


359 


However, the ARIMA technique used by McFarland assumes that an event 
will have a permanent effect on a dependent variable. This is often the case in 
analyses of economic behavior. For example, instituting a charge for directory 
assistance would be expected to have a permanent negative effect on the public’s 
use of directory assistance in making telephone calls. In the case of executions, 
an ARIMA model assumes that an execution will have a permanent effect on 
homicide. This is problematic since it assumes that the public will remember the 
execution for an indefinite amount of time. 

A significant decline after the first (Gilmore) execution is attributed to a 
change in the weather. A severe snowstorm altered the routine activities of peo¬ 
ple, making them less likely to frequent dangerous places where some would 
have been killed (McFarland, 1983). 

There are other limitations to the McFarland study as well. As Peterson 
and Bailey (1988) point out, the first few executions (including the ones studied 
by McFarland) were spread out over 5 years, and followed a 10 year moratorium 
on executions. In this context, the executions might not be expected to have as 
much of a death dip effect as the more frequent executions of the mid-1980s. 
In addition, the one-variable ARIMA model used by McFarland does not take 
advantage of the wealth of possible control variables available. It is not clear 
why McFarland did not elect to use multivariate ARIMA modeling techniques 
that would predict homicide more accurately, taking advantage of the available 
predictors of homicide (McCleary and Hay, 1980). Instead he uses the past homi¬ 
cide rate as the sole predictor of the homicide rate. 

2. England 

A reevaluation of Phillips’ (1980) study of 19th century English publicized execu¬ 
tions employs an experimental period of 10 weeks (Bowers, 1988). Unlike Phil¬ 
lips, who used a short-term experimental period. Bowers finds an increase of 2.4 
homicides in the 10 weeks after an execution in England (Bowers, 1988:75). 

3. Oklahoma 

A study of the implications of one execution in Oklahoma, using univariate 
ARIMA techniques, found no death dip effect for criminal homicides in gen¬ 
eral following the execution (Cochran et al., 1994). The study employed weekly 
homicide data from the Uniform Crime Reports (UCR) Supplemental homicide 
reports for 1989-1991. 

While not acknowledged by the authors (Cochran et al., 1994), the ARIMA 
techniques employed, like those used by McFarland (1983), test for a permanent 
rise in the homicide rate after an execution. Furthermore, univariate ARIMA 
techniques do not introduce any control variables but use the series to predict 
itself over time as a substitute for statistical controls. Further work would be 



360 


Stack 


helpful. Such work could use standard econometric techniques as a check on the 
univariate techniques to determine if choice of techniques makes a difference in 
the results. 

Also, it would be desirable to replicate such research for a period of time 
that contained more than one execution. A death dip effect is not always found 
for publicized executions. For example, about a quarter of all publicized execu¬ 
tions during 1952-1980 were not followed by a decrease in homicide (Stack, 
1987b). It is possible that a study of just one execution might be based on one 
of these cases from the 25% for which there is no decline in homicide after the 
execution. 

The data source used by Cochran et al. (1994) presents a problem. They 
employ computerized data tapes containing the federal supplemental homicide 
reports. These typically do not contain all cases of homicide. In contrast, other 
research based on the US Public Health Service’s national vital statistics com¬ 
puter tapes is more complete, containing all homicides (e.g., Stack, 1987b; Bailey 
and Peterson, 1989). 

4. Philadelphia 

Turning to the research at the local level, two classic studies (Dann, 1935; Savitz, 
1958) based on long-term experimental or media effect periods in Philadelphia 
found no relationship between publicized executions or death sentences and the 
incidence of homicide. Dann (1935) reports an increase, not a decrease, in homi¬ 
cides in the 60 days after publicized executions compared to the 60 days before 
the executions. The sample consisted of five executions in the city of Philadel¬ 
phia. 

Savitz (1958) explored the effect of publicized death sentences on homicide 
by comparing the number of homicides 8 weeks before and after a death sentence. 
Only four murderers met the investigator’s criteria for inclusion in the study 
(Savitz, 1958). Again, as in the study of the same city 20 years earlier, there was 
no marked tendency for the mean number of homicides after the death sentence 
(5.13) to decrease from the control period mean (5.37 homicides). 

Besides the primary problem of assuming that executions would have ef¬ 
fects on homicide for 2 months, the research from Philadelphia has some further 
associated problems indicating that it should be taken with some caution. Savitz 
(1958) restricts his sample of death sentences to only those handed down in Phila¬ 
delphia. This methodology excluded scores of other death sentences handed down 
from other jurisdictions in Pennsylvania. If some of these excluded death sen¬ 
tences were covered in The Philadelphia Inquirer, the newspaper searched by 
Savitz, their exclusion could contaminate his results. 

Second, Savitz was not concerned with the possible contaminating effect 
of omitted publicized executions. He studied death sentences only and did not 



Publicized Executions and Homicides 


361 


count actual executions. During the study’s time frame (1944-1954) there were, 
however, 43 persons executed in the state of Pennsylvania. In addition, eight of 
these executions occurred during the control and experimental periods used by 
Savitz. By focusing on death sentences only, Savitz allowed pre-death-sentence 
control periods to be contaminated with executions. This, for example, c